Exhibit 4.4


 


AMENDMENT
NO. 1 TO


SECOND
AMENDED AND RESTATED STOCKHOLDER’S AGREEMENT


 


AMENDMENT NO. 1 TO THE SECOND AMENDED AND
RESTATED STOCKHOLDER’S AGREEMENT (this “Amendment”), dated as of November
10, 2008, between Ecolab Inc., a Delaware corporation (the “Company”)
and Henkel AG & Co. KGaA (f/k/a Henkel Kommanditgesellschaft auf
Aktien), organized under the laws of the Federal Republic of Germany (the “Stockholder”).


 


WHEREAS, the Company and the Stockholder are
party to that certain Second Amended and Restated Stockholder’s Agreement,
dated as of November 30, 2001, 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, simultaneously with the execution of
this Amendment, the Company, the Stockholder and Henkel Corporation, a Delaware
corporation (“Henkel Corp.,” and, together with the Stockholder, the “Selling
Stockholders”) have executed that certain Stock Purchase Agreement, dated
as of the date hereof (the “Purchase Agreement”), pursuant to which the
Selling Stockholders agree to sell, and the Company agrees to purchase, shares
of Common Stock held by the Selling Stockholders as set forth in the Purchase
Agreement; and


 


WHEREAS, the Company and the Stockholder
desire to amend certain provisions of the Stockholder’s Agreement as set forth
below.


 


NOW, THEREFORE, in consideration of the
mutual promises and covenants contained herein and in the Purchase Agreement,
the parties hereto agree as follows:


 


1.                                       Amendment of Section 5(a).  Section 5(a) of the Stockholder’s
Agreement is hereby amended by (1) deleting the word “or” at the end of Section 5(a)(viii),
(2) deleting the period at the end of Section 5(a)(ix) and
substituting in lieu therefor “; or” and (3) adding the following new Section 5(a)(x) after
Section 5(a)(ix):


 


                                                “(x) pursuant
to an underwritten public offering under the Securities Act (the “First
Offering”); and, in the event that the Stockholder and its Affiliates do
not sell all of their shares of Common Stock in the First Offering, pursuant to
a second underwritten public offering under the Securities Act (the “Second
Offering,” and, together with the First Offering, the “Amendment Offerings”);
provided, however, that:


 

















 


(A) (1) each
Amendment Offering will be made in accordance with the terms for registration
rights attached hereto as Exhibit A, (2) the managing underwriters of
such offering will agree to effect the sale of the shares of Common Stock owned
by the Stockholder and its Affiliates in a manner which will result in a broad
distribution thereof and (3) the Stockholder will use all reasonable
efforts to insure that no sales of shares of Common Stock owned by the
Stockholder or its Affiliates are made to any Prohibited Holder (other than to
underwriters or any selected dealers for the purpose of effecting such broad
distribution), except as permitted by Section 5(a)(x)(B) hereof;


 


(B) prior
to (1) the First Offering and (2) the Second Offering, if applicable,
the Stockholder and the Company shall mutually agree in writing upon a list of
Third Persons, each of whom may purchase shares of Common Stock owned by the
Stockholder and its Affiliates in such offering so long as such Third Person
(considered together with such Third Person’s Affiliates or any group such
Third Person may be a member of) will not beneficially own in the aggregate
more than five percent (5%) of the outstanding Voting Securities after such
purchase (the “5% Purchasers”);


 


(C) the
Stockholder will, and will cause each of its Affiliates to, use reasonable
efforts to sell all of the shares of Common Stock owned by the Stockholder and
its Affiliates in the First Offering (subject to reserving shares to the extent
needed for any over-allotment option in connection with the First Offering),
subject to market conditions and the Stockholder’s right to withdraw the
offering if the price is not acceptable in the Stockholder’s reasonable
judgment, provided, that the Stockholder and its Affiliates may not sell
any shares of Common Stock in the First Offering unless at least 43,700,000
shares of Common Stock are sold in the First Offering to the underwriters, and further
provided, that if the First Offering is not completed for any reason,
the Stockholder and its Affiliates may not sell any shares of Common Stock in
the Second Offering unless at least 43,700,000 shares of Common Stock are sold
in the Second Offering to the underwriters;


 


(D) the
Stockholder will, and will cause each of its Affiliates to, deliver the shares
of Common Stock owned by the Stockholder and its Affiliates for each Amendment
Offering to the underwriters for such offering on a single date and no
Amendment Offering may constitute a continuous offering under the Securities
Act;


 


(E) for
each Amendment Offering, the Stockholder will supply the underwriters with an
over-allotment option of at least ten percent (10%) of the shares of Common
Stock owned by the Stockholder and its Affiliates upon the commencement of such
Amendment Offering; and


 


(F) in
the event that the Stockholder terminates any Amendment Offering for any
reason, the obligations of the Company under this Section 5(a)(x) with
respect to such Amendment Offering shall be deemed 


 


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satisfied and
shall not extend to any additional offerings beyond the two Amendment Offerings
provided for in this Section 5(a)(x).”


 


                                                                                                2.                                       Amendment of Section 5(c). 
The final sentence of Section 5(c) of the Stockholder’s
Agreement is hereby amended to read in its entirety as follows: “Transfers
pursuant to Sections 5(a)(i), 5(a)(ii), 5(a)(iii), 5(a)(iv) only as to the
number of shares of Common Stock owned by the Stockholder and its Affiliates
equal to the number of shares of Common Stock in any over-allotment option
granted to the underwriters in the most recent Amendment Offering that were not
purchased by such underwriters, 5(a)(viii) and 5(a)(x) hereof are not
subject to the provisions of this Section 5(c).”


 


3.                                       Amendment
of Section 7.  Section 7,
clause (i) of the second paragraph of the Stockholder’s Agreement is
hereby amended to read in its entirety as follows: “terminate the stop transfer
instructions and remove the legend in connection with transfers pursuant to
Sections 5(a)(iv)(A), 5(a)(vi) and 5(a)(x) of this Agreement,”.


 


4.                                       Amendment
of Exhibit A.


 


                                                (a)                                  Exhibit A
of the Stockholder’s Agreement is hereby amended by adding the following
sentences at the end of Section 2:


 


                                                “Each
Amendment Offering, including any Amendment Offering that the Stockholder
terminates for any reason, shall constitute one request for registration by the
Stockholder for the purposes of this Section 2.  The First Offering shall be deemed to
commence upon the filing of the registration statement relating to the First
Offering.  The Second Offering shall be
deemed to commence upon the Company receiving from the Stockholder written notice
of the Stockholder’s intent to initiate the Second Offering.  For each Amendment Offering, the underwriting
group will consist of five (5) investment banks, three (3) at
bookrunner level and two (2) at co-manager level; the Stockholder will
select two (2) bookrunners and one (1) co-manager, and the Company
will select one (1) bookrunner and one (1) co-manager. The
Stockholder will select the stabilization agent, if any, for each Amendment
Offering.”


 


                                                (b)                                 Exhibit A
of the Stockholder’s Agreement is hereby further amended by adding the
following sentence at the end of Section 5:


 


                                                “The
Stockholder will bear all out-of-pocket expenses incurred by the Company
related to the road shows for the Amendment Offerings, including the use of
private aircraft.”


 


                                                (c)                                  Exhibit A
of the Stockholder’s Agreement is hereby further amended by adding the
following new sentence after Section 6(c):


 


                                                “In
connection with any Amendment Offering, the Company agrees to make members of
senior management of the Company available to participate in a road show, on a
schedule mutually agreeable to the Stockholder and the Company.”


 


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5.                                       Interpretation.
Except as set forth in this Amendment, the provisions of the Stockholder’s
Agreement shall remain in full force and effect.


 


6.                                       Expiration.
This Amendment
shall expire at 5:00 p.m. Eastern time on the date that is eighteen (18)
months after the date on which the registration statement for the First
Offering is declared or otherwise becomes effective and the Stockholder’s
Agreement (in the form existing prior to this Amendment and to the extent not
terminated in accordance with the terms thereof) shall remain in full force and
effect and shall be otherwise unaffected thereby.


 


7.                                       Counterparts.
This Amendment may be executed in one or more counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute one and
the same instrument.  Facsimile
signatures shall constitute original signatures.


 


[signatures appear on following page]


 


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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first set forth above.


 


 


	
   

  	
  ECOLAB INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Steven L. Fritze

  
	
   

  	
  Name: Steven L. Fritze

  
	
   

  	
  Its: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HENKEL AG & CO. KGAA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas Gerd Kühn

  
	
   

  	
  Name: Thomas Gerd Kühn

  
	
   

  	
  Its: General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Heinz Nicolas

  
	
   

  	
  Name: Heinz Nicolas

  
	
   

  	
  Its: Senior Corporate Counsel

  



 


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