Exhibit
10.A(ii)a


 


Commercial Paper Dealer Agreement


 


4(2) Program


 


Between:


 


Ecolab Inc., as Issuer


 


and


 


[                     ],
as Dealer


 


Concerning Notes to be
issued pursuant to an Issuing and Paying Agency Agreement dated as of July 10,
2000 between the Issuer and Bank One, National Association, as Issuing and
Paying Agent.


 


Dated as of


 


[                         ]


 


Commercial Paper Dealer Agreement 

4(2) Program


 


This agreement
(“Agreement”) sets forth the understandings between the Issuer and the Dealer,
each named on the cover page hereof, in connection with the issuance and sale
by the Issuer of its short-term promissory notes (the “Notes”) through the
Dealer.


 


Certain terms used in
this Agreement are defined in Section 6 hereof.


 


The Addendum to this
Agreement, and any Annexes or Exhibits described in this Agreement or such
Addendum, are hereby incorporated into this Agreement and made fully a part
hereof.


 


1.         Offers, Sales and Resales of Notes.


1.1        While (i) the Issuer has and shall have no obligation
to sell the Notes to the Dealer or to permit the Dealer to arrange any sale of
the Notes for the account of the Issuer, and (ii) the Dealer has and shall have
no obligation to purchase the Notes from the Issuer or to arrange any sale of
the Notes for the account of the Issuer, the parties hereto agree that in any
case where the Dealer purchases Notes from the Issuer, or arranges for the sale
of Notes by the Issuer, such Notes will be purchased or sold by the Dealer in
reliance on the representations, warranties, covenants and agreements of the
Issuer contained herein or made pursuant hereto and on the terms and conditions
and in the manner provided herein.


 


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1.2        So long as this Agreement shall remain in effect, and
in addition to the limitations contained in Section 1.7 hereof, the Issuer
shall not, without the consent of the Dealer, offer, solicit or accept offers
to purchase, or sell, any Notes except (a) in transactions with one or more
dealers which may from time to time after the date hereof become dealers with
respect to the Notes by executing with the Issuer one or more agreements which
contain provisions substantially identical to those contained in Section 1 of
this Agreement, of which the Issuer hereby undertakes to provide the Dealer
prompt notice or (b) in transactions with the other dealers listed on the
Addendum hereto, which are executing agreements with the Issuer which contain
provisions substantially identical to Section 1 of this Agreement
contemporaneously herewith.  In no event
shall the Issuer offer, solicit or accept offers to purchase, or sell, any
Notes directly on its own behalf in transactions with persons other than
broker-dealers as specifically permitted in this Section 1.2.


 


1.3        The Notes shall be in a minimum denomination of
$250,000 or integral multiples of $1,000 in excess thereof, will bear such
interest rates, if interest bearing, or will be sold at such discount from
their face amounts, as shall be agreed upon by the Dealer and the Issuer, shall
have a maturity not exceeding 270 days from the date of issuance (exclusive of
days of grace) and shall not contain any provision for extension, renewal or
automatic “rollover.”


 


1.4        The authentication and issuance of, and payment for,
the Notes shall be effected in accordance with the Issuing and Paying Agency
Agreement, and the Notes shall be either individual physical certificates or
book-entry notes evidenced by a Master Note registered in the name of DTC or
its nominee, in the form or forms annexed to the Issuing and Paying Agency
Agreement.


 


1.5        If the Issuer and the Dealer shall agree on the terms
of the purchase of any Note by the Dealer or the sale of any Note arranged by
the Dealer (including, but not limited to, agreement with respect to the date
of issue, purchase price, principal amount, maturity and interest rate (in the
case of interest-bearing Notes) or discount thereof (in the case of Notes
issued on a discount basis), and appropriate compensation for the Dealer’s services
hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer, to the Issuing and Paying
Agent, for the account of the Issuer. 
Except as otherwise agreed, in the event that the Dealer is acting as an
agent and a purchaser shall either fail to accept delivery of or make payment
for a Note on the date fixed for settlement, the Dealer shall promptly notify
the Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the
Issuer will promptly return such funds to the Dealer against its return of the
Note to the Issuer, in the case of a certificated Note, and upon notice of such
failure in the case of a book-entry Note. 
If such failure occurred for any reason other than default by the
Dealer, the Issuer shall reimburse the Dealer on an equitable basis for the
Dealer’s loss of the use of such funds for the period such funds were credited
to the Issuer’s account.


 


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1.6        The Dealer and the Issuer hereby establish and agree
to observe the following procedures in connection with offers, sales and
subsequent resales or other transfers of the Notes:


 


(a)        Offers and sales of the Notes by or through the Dealer
shall be made only to: (i) investors reasonably believed by the Dealer to be
Qualified Institutional Buyers, Institutional Accredited Investors or
Sophisticated Individual Accredited Investors and (ii) non-bank fiduciaries or
agents that will be purchasing Notes for one or more accounts, each of which is
reasonably believed by the Dealer to be an Institutional Accredited Investor or
Sophisticated Individual Accredited Investor.


 


(b)        Resales and other transfers of the Notes by the
holders thereof shall be made only in accordance with the restrictions in the
legend described in clause (e) below.


 


(c)        No general solicitation or general advertising shall
be used in connection with the offering of the Notes.  Without limiting the generality of the foregoing, without the
prior written approval of the Dealer, the Issuer shall not issue any press
release or place or publish any “tombstone” or other advertisement relating to
the Notes.


 


(d)        No sale of Notes to any one purchaser shall be for
less than $250,000 principal or face amount, and no Note shall be issued in a
smaller principal or face amount.  If
the purchaser is a non-bank fiduciary acting on behalf of others, each person
for whom such purchaser is acting must purchase at least $250,000 principal or
face amount of Notes.


 


(e)        Offers and sales of the Notes by the Issuer through
the Dealer acting as agent for the Issuer shall be made in accordance with Rule
506 under the Securities Act, and shall be subject to the restrictions
described in the legend appearing on Exhibit A hereto.  A legend substantially to the effect of such
Exhibit A shall appear as part of the Private Placement Memorandum used in
connection with offers and sales of Notes hereunder, as well as on each
individual certificate representing a Note and each Master Note representing
book-entry Notes offered and sold pursuant to this Agreement.


 


(f)         The Dealer shall furnish or shall have furnished to
each purchaser of Notes for which it has acted as the Dealer a copy of the
then-current Private Placement Memorandum unless such purchaser has previously
received a copy of the Private Placement Memorandum as then in effect.  The Private Placement Memorandum shall
expressly state that any person to whom Notes are offered shall have an
opportunity to ask questions of, and receive information from, the Issuer and
the Dealer and shall provide the names, addresses and telephone numbers of the
persons from whom information regarding the Issuer may be obtained.


 


(g)        The Issuer agrees, for the benefit of the Dealer and
each of the holders and prospective purchasers from time to time of the Notes
that, if at any time the Issuer shall not be subject to Section 13 or 15 (d) of
the Exchange Act, the Issuer will furnish, upon request and at its expense, to
the Dealer and to holders and prospective purchasers of Notes information
required by Rule 144A(d) (4) (i) in compliance with Rule 144A(d).


 


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(h)        In the event that any Note offered or to be offered by
the Dealer would be ineligible for resale under Rule 144A, the Issuer shall
immediately notify the Dealer (by telephone, confirmed in writing) of such fact
and shall promptly prepare and deliver to the Dealer an amendment or supplement
to the Private Placement Memorandum describing the Notes that are ineligible,
the reason for such ineligibility and any other relevant information relating
thereto.


 


(i)         The Issuer represents that it is not currently issuing
commercial paper in the United States market in reliance upon the exemption
provided by Section 3(a)(3) of the Securities Act.  In that connection, the Issuer agrees that in the event that it
shall, after the date hereof, issue commercial paper in the United States in
reliance upon the exemption provided by Section 3(a)(3) of the Securities Act,
(a) the proceeds from the sale of the Notes will be segregated from the
proceeds of the sale of any such commercial paper by being placed in a separate
account; (b) the Issuer will institute appropriate corporate procedures to
ensure that the offers and sales of notes issued by the Issuer pursuant to the
Section 3(a)(3) exemption are not integrated with offerings and sales of Notes
hereunder; and (c) the Issuer will comply with each of the requirements of
Section 3(a)(3) of the Act in selling commercial paper or  other short-term debt
securities other than the Notes in the United States.


 


1.7        The Issuer hereby represents and warrants to the
Dealer, in connection with offers, sales and resales of Notes, as follows:


 


(a)        Issuer hereby confirms to the Dealer that (except as
permitted by Section 1.6(i)) within the preceding six months neither the Issuer
nor any person other than the Dealer or the other dealers referred to in
Section 1.2 hereof acting on behalf of the Issuer has offered or sold any
Notes, or any substantially similar security of the Issuer, to, or solicited
offers to buy any such security from, any person other than the Dealer or the
other dealers referred to in Section 1.2 hereof.  The Issuer also agrees that (except as permitted by Section
1.6(i)), as long as the Notes are being offered for sale by the Dealer and the other
dealers referred to in Section 1.2 hereof as contemplated hereby and until at
least six months after the offer of Notes hereunder has been terminated,
neither the Issuer nor any person other than the Dealer or the other dealers
referred to in Section 1.2 hereof (except as contemplated by Section 1.2
hereof) will offer the Notes or any substantially similar security of the
Issuer for sale to, or solicit offers to buy any such security from, any person
other than the Dealer or the other dealers referred to in Section 1.2 hereof,
it being understood that such agreement is made with a view to bringing the
offer and sale of the Notes within the exemption provided by Section 4(2) of
the Securities Act and Rule 506 thereunder and shall survive any termination of
this Agreement.  The Issuer hereby represents
and warrants that it has not taken or omitted to take, and will not take or
omit to take, any action that would cause the offering and sale of Notes
hereunder to be integrated with any other offering of securities, whether such
offering is made by the Issuer or some other party or parties.


 


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(b)        The Issuer represents and agrees that the proceeds of
the sale of the Notes are not currently contemplated to be used for the purpose
of buying, carrying or trading securities within the meaning of Regulation T
and the interpretations thereunder by the Board of Governors of the Federal
Reserve System.  In the event that the
Issuer determines to use such proceeds for the purpose of buying, carrying or
trading securities, whether in connection with an acquisition of another
company or otherwise, the Issuer shall give the Dealer notice at least five
business days’ prior to the actual date that it commences to purchase
securities with the proceeds of the Notes. 
Thereafter, in the event that the Dealer purchases Notes as principal
and does not resell such Notes on the day of such purchase, to the extent
necessary to comply with Regulation T and the interpretations thereunder, the
Dealer will sell such Notes either (i) only to offerees it reasonably believes
to be QIBs or to QIBs it reasonably believes are acting for other QIBs, in each
case in accordance with Rule 144A or (ii) in a manner which would not cause a
violation of Regulation T and the interpretations thereunder.


 


2.         Representations and Warranties of Issuer.


The Issuer represents and
warrants that:


 


2.1        The Issuer is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all the requisite power and authority to execute, deliver
and perform its obligations under the Notes, this Agreement and the Issuing and
Paying Agency Agreement.


 


2.2        This Agreement and the Issuing and Paying Agency
Agreement have been duly authorized, executed and delivered by the Issuer and
constitute legal, valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and
subject, as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).


 


2.3        The Notes have been duly authorized, and when issued
as provided in the Issuing and Paying Agency Agreement, will be duly and
validly issued and will constitute legal, valid and binding obligations of the
Issuer enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors’
rights generally, and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity
or at law).


 


2.4        The offer and sale of Notes in the manner contemplated
hereby do not require registration of the Notes under the Securities Act,
pursuant to the exemption from registration contained in Section 4(2) thereof,
and no indenture in respect of the Notes is required to be qualified under the
Trust Indenture Act of 1939, as amended.


 


2.5        The Notes will rank at least pari passu with all other
unsecured and unsubordinated indebtedness of the Issuer.


 


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2.6        No consent or action of, or filing or registration
with, any governmental or public regulatory body or authority, including the
SEC, is required to authorize, or is otherwise required in connection with the
execution, delivery or performance of, this Agreement, the Notes or the Issuing
and Paying Agency Agreement, except as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale of
the Notes.


 


2.7        Neither the execution and delivery of this Agreement
and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in
accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of
or compliance with the terms and provisions hereof or thereof by the Issuer,
will (i) result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of
the Issuer, or (ii) violate or result in a breach or a default under any of the
terms of the Issuer’s charter documents or by-laws, any contract or instrument
to which the Issuer is a party or by which it or its property is bound, or any
law or regulation, or any order, writ, injunction or decree of any court or
government instrumentality, to which the Issuer is subject or by which it or
its property is bound, which breach or default is reasonably likely to result in
a material adverse change in the condition (financial or otherwise), operations
or business prospects of the Issuer and its consolidated subsidiaries, taken as
a whole, which would be material to the holders of Notes or to potential
holders of Notes or the ability of the Issuer to perform its obligations under
this Agreement, the Notes or the Issuing and Paying Agency Agreement.


 


2.8        There is no litigation or governmental proceeding
pending, or to the knowledge of the Issuer threatened, against or affecting the
Issuer or any of its subsidiaries which is reasonably likely to result in a
material adverse change in the condition (financial or otherwise), operations
or business prospects of the Issuer or the ability of the Issuer and its
consolidated subsidiaries, taken as a whole, which would be material to the
holders of Notes or to potential holders of Notes to perform its obligations
under this Agreement, the Notes or the Issuing and Paying Agency Agreement.


 


2.9        The Issuer is not an “investment company” or an entity
“controlled” by an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.


 


2.10      Neither the Private Placement Memorandum nor the
Company Information contains any untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.


 


2.11      Each (a) issuance of Notes by the Issuer hereunder and
(b) amendment or supplement of the Private Placement Memorandum shall be deemed
a representation and warranty by the Issuer to the Dealer, as of the date
thereof, that, both before and after giving effect to such issuance and after
giving effect to such amendment or supplement, (i) the representations and
warranties given by the Issuer set forth above in this Section 2 remain true
and correct on and as of such date as if made on and as of such date, (ii) in
the case of an issuance of Notes, the Notes being issued on such date have been
duly and validly issued and constitute legal, valid and binding obligations of
the Issuer, enforceable against the Issuer in accordance with their terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and subject,


 


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as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (iii) in the case of an issuance of Notes,
since the date of the most recent Private Placement Memorandum, there has been
no material adverse change in the condition (financial or otherwise),
operations or business prospects of the Issuer and its consolidated
subsidiaries, taken as a whole, which would be material to the holders of Notes
or to potential holders of Notes which has not been disclosed to the Dealer in
writing.


 


3.         Covenants and Agreements of Issuer.


The
Issuer covenants and agrees that:


 


3.1        The Issuer will give the Dealer prompt notice (but in
any event prior to any subsequent issuance of Notes hereunder) of any amendment
to, modification of or waiver with respect to, the Notes or the Issuing and
Paying Agency Agreement, including a complete copy of any such amendment,
modification or waiver.


 


3.2        The Issuer shall, whenever there shall occur any
adverse change in the Issuer’s condition (financial or otherwise), operations
or business prospects or any development or occurrence in relation to the
Issuer that would be material to holders of the Notes or potential holders of
the Notes (including any downgrading or receipt of any notice of intended or
potential downgrading or any review for potential change in the rating accorded
any of the Issuer’s securities by any nationally recognized statistical rating
organization which has published a rating of the Notes), promptly, and in any
event prior to any subsequent issuance of Notes hereunder, notify the Dealer
(by telephone, confirmed in writing) of such change, development or occurrence.


 


3.3        The Issuer shall from time to time furnish to the
Dealer such information as the Dealer may reasonably request, including,
without limitation, any press releases or material provided by the Issuer to
any national securities exchange or rating agency, regarding (i) the Issuer’s
operations and financial condition, (ii) the due authorization and execution of
the Notes and (iii) the Issuer’s ability to pay the Notes as they mature.


 


3.4        The Issuer will take all such action as the Dealer may
reasonably request to ensure that each offer and each sale of the Notes will
comply with any applicable state Blue Sky laws; provided, however, that the
Issuer shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation in any jurisdiction in which it is not
so qualified or subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.


 


3.5        The Issuer will not be in default of any of its
obligations hereunder, under the Notes or under the Issuing and Paying Agency
Agreement, at any time that any of the Notes are outstanding.


 


3.6        The Issuer shall not issue Notes hereunder until the
Dealer shall have received (a) an opinion of counsel to the Issuer, addressed
to the Dealer, satisfactory in form and substance to the Dealer, (b) a copy of
the executed Issuing and Paying Agency Agreement as then in effect, (c) a copy
of resolutions adopted by the Board of Directors of the Issuer, satisfactory in
form and substance to the Dealer and certified by the Secretary or similar
officer of the Issuer, authorizing execution and delivery by the Issuer of this
Agreement, the Issuing and Paying Agency Agreement and the Notes and 


 


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consummation by the
Issuer of the transactions contemplated hereby and thereby, (d) prior to the
issuance of any Notes represented by a book-entry note registered in the name
of DTC or its nominee, a copy of the executed Letter of Representations among
the Issuer, the Issuing and Paying Agent and DTC and (e) such other
certificates, opinions, letters and documents as the Dealer shall have
reasonably requested.


 


3.7        The Issuer shall reimburse the Dealer for all of the
Dealer’s out-of-pocket expenses related to this Agreement, including expenses
incurred in connection with its preparation and negotiation, and the
transactions contemplated hereby (including, but not limited to, the printing
and distribution of the Private Placement Memorandum), and, if applicable, for
the reasonable fees and out-of-pocket expenses of the Dealer’s counsel.


 


4.         Disclosure.


4.1        The Private Placement Memorandum and its contents
(other than the Dealer Information) shall be the sole responsibility of the
Issuer.  The Private Placement
Memorandum shall contain a statement expressly offering an opportunity for each
prospective purchaser to ask questions of, and receive answers from, the Issuer
concerning the offering of Notes and to obtain relevant additional information
which the Issuer possesses or can acquire without unreasonable effort or
expense.


 


4.2        The Issuer agrees to promptly furnish the Dealer the
Company Information as it becomes available.


 


4.3        (a) The Issuer further agrees to notify the Dealer
promptly upon the occurrence of any event relating to or affecting the Issuer
that would cause the Company Information then in existence to include an untrue
statement of a material fact or to omit to state a material fact necessary in
order to make the statements contained therein, in light of the circumstances
under which they are made, not misleading.


 


(b) In the event that the
Issuer gives the Dealer notice pursuant to Section 4.3 (a) and the Dealer
notifies the Issuer that it then has Notes it is holding in inventory, the
Issuer agrees promptly to supplement or amend the Private Placement Memorandum
so that the Private Placement Memorandum, as amended or supplemented, shall not
contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and the Issuer shall
make such supplement or amendment available to the Dealer.


 


(c)  In the event that (i) the Issuer gives the Dealer
notice pursuant to Section 4.3 (a), (ii) the Dealer does not notify the Issuer
that it is then holding Notes in inventory and (iii) the Issuer chooses not to
promptly amend or supplement the Private Placement Memorandum in the manner
described in clause (b) above, then all solicitations and sales of Notes shall
be suspended until such time as the Issuer has so amended or supplemented the
Private Placement Memorandum, and made such amendment or supplement available
to the Dealer.


 


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5.         Indemnification
and Contribution.


5.1        The Issuer will indemnify and hold harmless the
Dealer, each individual, corporation, partnership, trust, association or other
entity controlling the Dealer, any affiliate of the Dealer or any such
controlling entity and their respective directors, officers, employees,
partners, incorporators, shareholders, servants, trustees and agents
(hereinafter the “Indemnitees”) against any and all liabilities, penalties,
suits, causes of action, losses, damages, claims, costs and expenses (including,
without limitation, reasonable fees and disbursements of counsel) or judgments
of whatever kind or nature (each a “Claim”), imposed upon, incurred by or
asserted against the Indemnitees arising out of or based upon (i) any
allegation that the Private Placement Memorandum, the Company Information or
any information provided by the Issuer to the Dealer included (as of any
relevant time) or includes an untrue statement of a material fact or omitted
(as of any relevant time) or omits to state any material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading or (ii) arising out of or based upon the breach by the
Issuer of any agreement, covenant or representation made in or pursuant to this
Agreement.  This indemnification shall
not apply to the extent that the Claim arises out of or is based upon Dealer
Information.


 


5.2        Provisions relating to claims made for indemnification
under this Section 5 are set forth on Exhibit B to this Agreement.


 


5.3        In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in this
Section 5 is held to be unavailable or insufficient to hold harmless the
Indemnitees, although applicable in accordance with the terms of this Section
5, the Issuer shall contribute to the aggregate costs incurred by the Dealer in
connection with any Claim in the proportion of the respective economic
interests of the Issuer and the Dealer; provided, however, that such contribution
by the Issuer shall be in an amount such that the aggregate costs incurred by
the Dealer do not exceed the aggregate of the commissions and fees earned by
the Dealer hereunder with respect to the issue or issues of Notes to which such
Claim relates.  The respective economic
interests shall be calculated by reference to the aggregate proceeds to the
Issuer of the Notes issued hereunder and the aggregate commissions and fees
earned by the Dealer hereunder.


 


6.         Definitions.


6.1        “Claim” shall have the meaning set forth in Section
5.1.


 


6.2        “Company Information” at any given time shall mean the
Private Placement Memorandum together with, to the extent applicable, (i) the
Issuer’s most recent report on Form 10-K filed with the SEC and each report on
Form 10-Q or 8-K filed by the Issuer with the SEC since the most recent Form
10-K, (ii) the Issuer’s most recent annual audited financial statements and
each interim financial statement or report prepared subsequent thereto, if not
included in item (i) above, (iii) the Issuer’s and its affiliates’ other
publicly available reports provided to their respective shareholders, (iv) any
other information or disclosure prepared pursuant to Section 4.3 hereof and (v)
any information prepared or approved by the Issuer for dissemination to
investors or potential investors in the Notes.


 


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6.3        “Dealer Information” shall mean material concerning
the Dealer provided by the Dealer in writing expressly for inclusion in the
Private Placement Memorandum.


 


6.4        “DTC” shall mean The Depository Trust Company.


 


6.5        “Exchange Act” shall mean the U.S. Securities Exchange
Act of 1934, as amended.


 


6.6        “Indemnitee” shall have the meaning set forth in
Section 5.l.


 


6.7        “Institutional Accredited Investor” shall mean an
institutional investor that is an accredited investor within the meaning of
Rule 501 under the Securities Act and that has such knowledge and experience in
financial and business matters that it is capable of evaluating and bearing the
economic risk of an investment in the Notes, including, but not limited to, a
bank, as defined in Section 3 (a) (2) of the Securities Act, or a savings and
loan association or other institution, as defined in Section 3 (a) (5) (A) of
the Securities Act, whether acting in its individual or fiduciary capacity.


 


6.8        “Issuing and Paying Agency Agreement” shall mean the
issuing and paying agency agreement described on the cover page of this
Agreement, as such agreement may be amended or supplemented from time to time.


 


6.9        “Issuing and Paying Agent” shall mean the party
designated as such on the cover page of this Agreement, as issuing and paying
agent under the Issuing and Paying Agency Agreement, or any successor thereto
in accordance with the Issuing and Paying Agency Agreement.


 


6.10      “Non-bank fiduciary or agent” shall mean a fiduciary
or agent other than (a) a bank, as defined in Section 3 (a) (2) of the
Securities Act, or (b) a savings and loan association, as defined in Section 3
(a) (5) (A) of the Securities Act.


 


6.11      “Private Placement Memorandum” shall mean offering
materials prepared in accordance with Section 4 (including materials referred
to therein or incorporated by reference therein) provided to purchasers and
prospective purchasers of the Notes, and shall include amendments and
supplements thereto which may be prepared from time to time in accordance with
this Agreement (other than any amendment or supplement that has been completely
superseded by a later amendment or supplement).


 


6.12      “Qualified Institutional Buyer” shall have the meaning
assigned to that term in Rule 144A under the Securities Act.


 


6.13      “Rule 144A” shall mean Rule 144A under the Securities
Act.


 


6.14      “SEC” shall mean the U.S. Securities and Exchange
Commission.


 


6.15      “Securities Act” shall mean the U.S. Securities Act of
1933, as amended.


 


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6.16      “Sophisticated Individual Accredited Investor” shall
mean an individual who (a) is an accredited investor within the meaning of Regulation
D under the Securities Act and (b) based on his or her pre-existing
relationship with the Dealer, is reasonably believed by the Dealer to be a
sophisticated investor (i) possessing such knowledge and experience (or
represented by a fiduciary or agent possessing such knowledge and experience)
in financial and business matters that he or she is capable of evaluating and
bearing the economic risk of an investment in the Notes and (ii) having a net
worth of at least 

$5 million.


 


7.          General


7.1        Unless otherwise expressly provided herein, all
notices under this Agreement to parties hereto shall be in writing and shall be
effective when received at the address of the respective party set forth in the
Addendum to this Agreement.


 


7.2        This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
conflict of laws provisions.


 


7.3        The Issuer agrees that any suit, action or proceeding
brought by the Issuer against the Dealer in connection with or arising out of
this Agreement or the Notes or the offer and sale of the Notes shall be brought
solely in the United States federal courts located in the Borough of Manhattan
or the courts of the State of New York located in the Borough of Manhattan.  EACH OF THE DEALER AND THE ISSUER WAIVES ITS
RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


7.4        This Agreement may be terminated, at any time, by the
Issuer, upon three business days’ prior notice to such effect to the Dealer, or
by the Dealer upon three business days’ prior notice to such effect to the
Issuer.  Any such termination, however,
shall not affect the obligations of the Issuer under Sections 3.7, 5 and 7.3
hereof or the respective representations, warranties, agreements, covenants,
rights or responsibilities of the parties made or arising prior to the
termination of this Agreement.


 


7.5        This Agreement is not assignable by either party
hereto without the written consent of the other party; provided, however, that
the Dealer may assign its rights and obligations under this Agreement to any
affiliate of the Dealer.


 


7.6        This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.


 


7.7        This Agreement is for the exclusive benefit of the
parties hereto, and their respective permitted successors and assigns
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the date and
year first above written.


 


	
  Ecolab Inc., as Issuer

  	
  [                                                 ],
  as Dealer

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:  Vice President and Treasurer

  	
  Title:

  	
   

  
						



 


12

















 


Addendum


 


The following additional
clauses shall apply to the Agreement and be deemed a part thereof.


 


1.          The other dealers referred to in clause (b) of Section
1.2 of the Agreement are none.


 


2.          The following Section 3.8 is hereby added to the
Agreement:


 


Without limiting any
obligation of the Issuer pursuant to this Agreement to provide the Dealer with
credit and financial information, the Issuer hereby acknowledges and agrees
that the Dealer may share the Company Information and any other information or
matters relating to the Issuer or the transactions contemplated hereby with
affiliates of the Dealer, including, but not limited to, [Dealer’s affiliated
bank] and that such affiliates may likewise share information relating to the
Issuer or such transactions with the Dealer.


 


3.          The addresses of the respective parties for purposes
of notices under Section 7.1 are as follows:


 


	
  For the Issuer:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  370 N. Wabasha Street

  	
   

  	
   

  
	
   

  	
   

  	
  St. Paul,
  Minnesota  55102

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  [                                           ],  Vice President and Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone number:

  	
   

  	
  (651) 293-2861

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fax number:

  	
   

  	
  (651) 225-3416

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  For the Dealer:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone number:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fax number:

  	
   

  	
   

  	
   

  	
   

  



 


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Exhibit A


 


Form of Legend for Private Placement Memorandum and Notes


 


THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR ANY OTHER APPLICABLE SECURITIES LAW, AND OFFERS AND
SALES THEREOF MAY BE MADE ONLY IN COMPLIANCE WITH AN APPLICABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.  BY ITS ACCEPTANCE OF A NOTE, THE
PURCHASER WILL BE DEEMED TO REPRESENT THAT IT HAS BEEN AFFORDED AN OPPORTUNITY
TO INVESTIGATE MATTERS RELATING TO THE ISSUER AND THE NOTES, THAT IT IS NOT
ACQUIRING SUCH NOTE WITH A VIEW TO ANY DISTRIBUTION THEREOF AND THAT IT IS
EITHER (A) AN INSTITUTIONAL INVESTOR OR HIGHLY SOPHISTICATED INDIVIDUAL
INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501 (a)
UNDER THE ACT AND WHICH, IN THE CASE OF AN INDIVIDUAL, (i) POSSESSES SUCH
KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT HE OR SHE IS
CAPABLE OF EVALUATING AND BEARING THE ECONOMIC RISK OF AN INVESTMENT IN THE
NOTES AND (ii) HAS A NET WORTH OF AT LEAST $5 MILLION (AN “INSTITUTIONAL
ACCREDITED INVESTOR” OR “SOPHISTICATED INDIVIDUAL ACCREDITED INVESTOR”,
RESPECTIVELY) AND THAT EITHER IS PURCHASING NOTES FOR ITS OWN ACCOUNT, IS A
U.S. BANK (AS DEFINED IN SECTION 3 (a) (2) OF THE ACT) OR A SAVINGS AND LOAN
ASSOCIATION OR OTHER INSTITUTION (AS DEFINED IN SECTION 3 (a) (5) (A) OF THE
ACT) ACTING IN ITS INDIVIDUAL OR FIDUCIARY CAPACITY OR IS A FIDUCIARY OR AGENT
(OTHER THAN A U.S. BANK OR SAVINGS AND LOAN ASSOCIATION) PURCHASING NOTES FOR
ONE OR MORE ACCOUNTS EACH OF WHICH IS SUCH AN INSTITUTIONAL ACCREDITED INVESTOR
OR SOPHISTICATED INDIVIDUAL ACCREDITED INVESTOR (i) WHICH ITSELF POSSESSES SUCH
KNOWLEDGE AND EXPERIENCE OR (ii) WITH RESPECT TO WHICH SUCH PURCHASER HAS SOLE
INVESTMENT DISCRETION; OR (B) A QUALIFIED INSTITUTIONAL BUYER (“QIB”) WITHIN
THE MEANING OF RULE 144A UNDER THE ACT WHICH IS ACQUIRING NOTES FOR ITS OWN
ACCOUNT OR FOR ONE OR MORE ACCOUNTS, EACH OF WHICH IS A QIB AND WITH RESPECT TO
EACH OF WHICH THE PURCHASER HAS SOLE INVESTMENT DISCRETION; AND THE PURCHASER
ACKNOWLEDGES THAT IT IS AWARE THAT THE SELLER MAY RELY UPON THE EXEMPTION FROM
THE REGISTRATION PROVISIONS OF SECTION 5 OF THE ACT PROVIDED BY RULE 144A.  BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER
THEREOF SHALL ALSO BE DEEMED TO AGREE THAT ANY RESALE OR OTHER TRANSFER THEREOF
WILL BE MADE ONLY (A) IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE ACT,
EITHER (1) TO THE ISSUER OR TO [DEALER’S NAME] OR ANOTHER PERSON DESIGNATED BY
THE ISSUER AS A PLACEMENT AGENT FOR THE NOTES (COLLECTIVELY, THE “PLACEMENT
AGENTS”), NONE OF WHICH SHALL HAVE ANY OBLIGATION TO ACQUIRE SUCH NOTE, (2)
THROUGH A PLACEMENT AGENT TO AN INSTITUTIONAL ACCREDITED INVESTOR,
SOPHISTICATED INDIVIDUAL ACCREDITED INVESTOR OR A QIB, OR (3) TO A QIB IN A
TRANSACTION THAT MEETS THE REQUIREMENTS OF RULE 144A AND (B) IN MINIMUM AMOUNTS
OF $250,000.


 


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Exhibit B


Further Provisions Relating to Indemnification


 


(a)     The Issuer agrees to reimburse each Indemnitee for all
expenses (including reasonable fees and disbursements of internal and external
counsel) as they are incurred by it in connection with investigating or
defending any loss, claim, damage, liability or action in respect of which
indemnification may be sought under Section 5 of the Agreement (whether or not
it is a party to any such proceedings).


 


(b)     Promptly after receipt by an Indemnitee of notice of
the existence of a Claim, such Indemnitee will, if a claim in respect thereof
is to be made against the Issuer, notify the Issuer in writing of the existence
thereof; provided that (i) the omission so to notify the Issuer will not
relieve the Issuer from any liability which it may have hereunder unless and
except to the extent it did not otherwise learn of such Claim and such failure
results in the forfeiture by the Issuer of substantial rights and defenses, and
(ii) the omission so to notify the Issuer will not relieve it from liability
which it may have to an Indemnitee otherwise than on account of this indemnity
agreement.  In case any such Claim is
made against any Indemnitee and it notifies the Issuer of the existence
thereof, the Issuer will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the Indemnitee, to assume the
defense thereof, with counsel reasonably satisfactory to such Indemnitee;
provided that if the defendants in any such Claim include both the Indemnitee
and the Issuer, and the Indemnitee shall have concluded that there may be legal
defenses available to it which are different from or additional to those
available to the Issuer, the Issuer shall not have the right to direct the
defense of such Claim on behalf of such Indemnitee, and the Indemnitee shall
have the right to select separate counsel to assert such legal defenses on
behalf of such Indemnitee.  Upon receipt
of notice from the Issuer to such Indemnitee of the Issuer’s election so to
assume the defense of such Claim and approval by the Indemnitee of counsel, the
Issuer will not be liable to such Indemnitee for expenses incurred thereafter
by the Indemnitee in connection with the defense thereof (other than reasonable
costs of investigation) unless (i) the Indemnitee shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood, however, that
the Issuer shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel in the jurisdiction in which any
Claim is brought), approved by the Dealer, representing the Indemnitee who is
party to such Claim), (ii) the Issuer shall not have employed counsel
reasonably satisfactory to the Indemnitee to represent the Indemnitee within a
reasonable time after notice of existence of the Claim or (iii) the Issuer has
authorized in writing the employment of counsel for the Indemnitee.  The indemnity, reimbursement and contribution
obligations of the Issuer hereunder shall be in addition to any other liability
the Issuer may otherwise have to an Indemnitee and shall be binding upon and
inure to the benefit of any successors, assigns, heirs and personal
representatives of the Issuer and any Indemnitee.  The Issuer agrees that without the Dealer’s prior written
consent, it will not settle, compromise or consent to the entry of any judgment
in any Claim in respect of which indemnification may be sought under the
indemnification provision of the Agreement (whether or not the Dealer or any
other Indemnitee is an actual or potential party to such Claim), unless such
settlement, compromise or consent includes an unconditional release of each
Indemnitee from all liability arising out of such Claim.


 


15