Exhibit
4.1


 


RESTATED CERTIFICATE OF
INCORPORATION


 


OF


 


ECOLAB
INC.


 


Ecolab Inc., a corporation
organized and existing under the laws of the State of Delaware, hereby
certifies as follows:


 


1.                                       The name of the
corporation is Ecolab Inc. (the “Corporation”).  The original Certificate of Incorporation was
filed on February 18, 1924, with the Delaware Secretary of State under the
name of Economics Laboratory, Inc.


 


2.                                       This Restated
Certificate of Incorporation restates and integrates and further amends the
provisions of the Restated Certificate of Incorporation of the Corporation by
amending the second and fourth paragraphs of Article IV of the Restated
Certificate of Incorporation as follows:


 


(A)                              The following sentence shall
be added at the end of the second paragraph of Article IV:


 


“Notwithstanding the foregoing, (1) at the 2011
annual meeting of stockholders, the directors whose terms expire at that
meeting shall be elected to hold office for a two-year term expiring at the
2013 annual meeting of stockholders; (2) at the 2012 annual meeting of
stockholders, the directors whose terms expire at that meeting shall be elected
to hold office for a one-year term expiring at the 2013 annual meeting of
stockholders; and (3) at the 2013 annual meeting of stockholders and each
annual meeting of stockholders thereafter, all directors shall be elected for a
one-year term expiring at the next annual meeting of stockholders. Pursuant to
such procedures, effective as of the 2013 annual meeting of stockholders, the
Board of Directors will no longer be classified under Section 141(d) of
the General Corporation Law of Delaware.”


 


(B)                                The last sentence of Article IV
shall be removed and replaced with the following sentence:


 


“Subject to the rights of the holders of any class
or series of the capital stock then outstanding, (x) until the 2013 annual
meeting of stockholders and in accordance with Section 141(k)(1) of
the General Corporation Law of Delaware, any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and (y) from
and after the 2013 annual meeting of stockholders, any director, or the entire
Board of Directors, may be removed from office at any time, with or without
cause.”


 


3.                                       This Restated
Certificate of Incorporation was duly proposed by the directors and adopted by
shareholders in the manner and by the vote prescribed by Section 242 and
duly adopted pursuant to Section 245 of the General Corporation Law of the
State of Delaware.


 


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4.                                       The text of the
Restated Certificate of Incorporation of the Corporation, as amended, is hereby
amended and restated in its entirety to read as follows:


 


ARTICLE
I


 


The name of the Corporation
is Ecolab Inc.


 


ARTICLE
II


 


The purposes of the Corporation
are to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware, and without limiting
the foregoing, to hold shares of the capital stock of other corporations and to
engage in services of all kinds, and produce, manufacture, develop, construct,
transport, buy, hold, sell and generally deal in products, materials and
property, both tangible and intangible.


 


ARTICLE
III


 


The total number of shares
of all classes of capital stock which the Corporation shall have authority to
issue is four hundred fifteen million (415,000,000) consisting of four hundred
million (400,000,000) shares of Common Stock of the par value of One Dollar
($1.00) per share and fifteen million (15,000,000) shares of Preferred Stock
without par value.  The number of
authorized shares of any class of capital stock may be increased or decreased
by the affirmative vote of the holders of a majority of capital stock of the
Corporation entitled to vote.


 


The Board of Directors of
the Corporation is granted full and complete authority to fix by resolution or
resolutions the designation, and the powers, preferences and rights of the
Preferred Stock and any series thereof, and the qualifications, limitations or
restrictions on such powers, preferences and rights.


 


Series A Junior
Participating Preferred Stock


 


A series of Preferred Stock
of the Corporation is hereby created and the designation, amount thereof and
the working powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:


 


Section 1.                                            Designation
and Amount. The shares of such series shall be designated as “Series A
Junior Participating Preferred Stock” and the number of shares constituting
such series shall be 400,000.


 


Section 2.                                            Dividends
and Distributions.


 


(A)                              Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock, if any, issued from time to time
ranking prior and superior to the shares of Series A Junior Participating
Preferred Stock with respect to dividends, the holders of shares of Series A
Junior Participating Preferred Stock shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the fifteenth day of February,
May, August and November in each 


 


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year (each
such date being referred to herein as a “Quarterly Dividend Payment Date”),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Junior
Participating Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $10.00 or (b) subject to the
provision for adjustment hereinafter set forth, 1000 times the aggregate per
share amount of all cash dividends, and 1000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions other
than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock, par value $1.00 per share, of the Corporation (the “Common
Stock”) since the immediately preceding Quarterly Dividend Payment Date, or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event the Corporation shall at any time
after February 24, 2006 (the “Rights Declaration Date”) (i) declare
any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the amount to
which holders of shares of Series A Junior Participating Preferred Stock
were entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.


 


(B)                                The Corporation shall declare a dividend or distribution on
the Series A Junior Participating Preferred Stock as provided in paragraph
(A) above immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $10.00 per share as such amount may be adjusted pursuant to the
last sentence of the preceding paragraph on the Series A Junior
Participating Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.


 


(C)                                Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock from
the Quarterly Dividend Payment Date next preceding the date of issue of such
shares of Series A Junior Participating Preferred Stock, unless the date
of issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Junior Participating
Preferred Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares of Series A
Junior Participating Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Junior Participating Preferred Stock
entitled to receive payment of a dividend 


 


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or
distribution declared thereon, which record date shall be no more than 60 days
prior to the date fixed for the payment thereof.


 


Section 3.                                            Voting
Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:


 


(A)                              Subject to the provision for adjustment hereinafter set
forth, each share of Series A Junior Participating Preferred Stock shall
entitle the holder thereof to 1000 votes on all matters submitted to a vote of
the stockholders of the Corporation. In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the number of votes per share to which
holders of shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such
number by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.


 


(B)                                Except as otherwise provided herein or by law, the holders of
shares of Series A Junior Participating Preferred Stock and the holders of
shares of Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.


 


(C)                                (i)  If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount equal to six (6) quarterly
dividends thereon, the occurrence of such contingency shall mark the beginning
of a period (herein called a “default period”) which shall extend until such
time when all accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all shares of Series A
Junior Participating Preferred Stock then outstanding shall have been declared
and paid or set apart for payment. During each default period, all holders of
Preferred Stock (including holders of the Series A Junior Participating
Preferred Stock) with dividends in arrears in an amount equal to six (6) quarterly
dividends thereon, voting as a class, irrespective of series, shall have the
right to elect two (2) Directors.


 


(ii)                        During any default period, such voting right of the holders
of Series A Junior Participating Preferred Stock may be exercised
initially at a special meeting called pursuant to subparagraph (iii) of
this Section 3(C) or at any annual meeting of stockholders, and
thereafter at annual meetings of stockholders, provided that neither such
voting right nor the right of the holders of any other series of Preferred
Stock, if any, to increase, in certain cases, the authorized number of
Directors shall be exercised unless the holders of ten percent (10%) in number
of shares of Preferred Stock outstanding shall be present in person or by
proxy. The absence of a quorum of the holders of Common Stock shall not affect
the exercise by the holders of Preferred Stock of such voting right. At any
meeting at which the holders of Preferred Stock shall exercise such voting
right initially during an existing default period, they shall have the right,
voting as a class, to elect Directors to fill such vacancies, if any, in the
Board of Directors as may then exist up to two (2) Directors or, if such
right is exercised at an annual meeting, to elect two (2) Directors. If
the number which may be so elected at any special meeting does not amount to
the required number, the holders of the Preferred Stock shall have the right to
make 


 


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such
increase in the number of Directors as shall be necessary to permit the election
by them of the required number. After the holders of the Preferred Stock shall
have exercised their right to elect Directors in any default period and during
the continuance of such period, the number of Directors shall not be increased
or decreased except by vote of the holders of Preferred Stock as herein
provided or pursuant to the rights of any equity securities ranking senior to
or pari passu with the Series A Junior Participating Preferred Stock.


 


(iii)                     Unless
the holders of Preferred Stock shall, during an existing default period, have
previously exercised their right to elect Directors, the Board of Directors may
order, or any stockholder or stockholders owning in the aggregate not less than
ten percent (10%) of the total number of shares of Preferred Stock outstanding,
irrespective of series, may request, the calling of a special meeting of the
holders of Preferred Stock, which meeting shall thereupon be called by the
President, a Vice President or the Secretary of the Corporation. Notice of such
meeting and of any annual meeting at which holders of Preferred Stock are
entitled to vote pursuant to this paragraph (C) (iii) shall be given
to each holder of record of Preferred Stock by mailing a copy of such notice to
him at his last address as the same appears on the books of the Corporation.
Such meeting shall be called for a time not earlier than 20 days and not later
than 60 days after such order or request or in default of the calling of such
meeting within 60 days after such order or request, such meeting may be called
on similar notice by any stockholder or stockholders owning in the aggregate
not less than ten percent (10%) of the total number of shares of Preferred
Stock outstanding. Notwithstanding the provisions of this paragraph (C)(iii), no
such special meeting shall be called during the period within 60 days
immediately preceding the date fixed for the next annual meeting of the
stockholders.


 


(iv)                    In
any default period, the holders of Common Stock, and other classes of stock of
the Corporation if applicable, shall continue to be entitled to elect the whole
number of Directors until the holders of Preferred Stock shall have exercised
their right to elect two (2) Directors voting as a class, after the
exercise of which right (x) the Directors so elected by the holders of
Preferred Stock shall continue in office until their successors shall have been
elected by such holders or until the expiration of the default period, and (y) any
vacancy in the Board of Directors may (except as provided in paragraph (C)(ii) of
this Section 3) be filled by vote of a majority of the remaining Directors
theretofore elected by the holders of the class of stock which elected the
Director whose office shall have become vacant. References in this paragraph (C) to
Directors elected by the holders of a particular class of stock shall include
Directors elected by such Directors to fill vacancies as provided in clause (y) of
the foregoing sentence.


 


(v)                       Immediately upon the expiration of a default period, (x) the
right of the holders of Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Preferred
Stock as a class shall terminate, and (z) the number of Directors shall be
such number as may be provided for in the Restated Certificate of Incorporation
or By-Laws irrespective of any increase made pursuant to the provisions of
paragraph (C)(ii) of this Section 3 (such number being subject,
however, to change thereafter in any manner provided by law or in the Restated
Certificate of Incorporation or By-Laws). Any vacancies in the Board of
Directors effected by the provisions of clauses (y) and (z) in the
preceding sentence may be filled by a majority of the remaining Directors.


 


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(D)                               Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.


 


Section 4.                                            Certain
Restrictions.


 


(A)                              Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred Stock
as provided in Section 2 are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on shares of Series A
Junior Participating Preferred Stock outstanding shall have been paid in full,
the Corporation shall not:


 


(i)                           declare or pay dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series A Junior Participating Preferred Stock;


 


(ii)                        declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid ratably on the Series A
Junior Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;


 


(iii)                     redeem
or purchase or otherwise acquire for consideration shares of any stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Junior Participating Preferred Stock, provided that
the Corporation may at any time redeem, purchase or otherwise acquire shares of
any such parity stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Junior Participating Preferred Stock; or


 


(iv)                    purchase
or otherwise acquire for consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of stock ranking on a parity with
the Series A Junior Participating Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment among
the respective series or classes.


 


(B)                                The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and
in such manner.


 


Section 5.                                            Reacquired
Shares. Any shares of Series A Junior Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon 


 


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their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part
of a new series of Preferred Stock to be created by resolution or resolutions
of the Board of Directors, subject to the conditions and restrictions on
issuance set forth herein.


 


Section 6.                                            Liquidation,
Dissolution or Winding Up.


 


(A)                              Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred
Stock unless, prior thereto, the holders of shares of Series A Junior
Participating Preferred Stock shall have received $1000 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment (the “Series A Liquidation
Preference”). Following the payment of the full amount of the Series A
Liquidation Preference, no additional distributions shall be made to the
holders of shares of Series A Junior Participating Preferred Stock unless,
prior thereto, the holders of shares of Common Stock shall have received an
amount per share (the “Common Adjustment”) equal to the quotient obtained by
dividing (i) the Series A Liquidation Preference by (ii) 1000 (as
appropriately adjusted as set forth in subparagraph (C) below to reflect
such events as stock splits, stock dividends and recapitalizations with respect
to the Common Stock) (such number in clause (ii), the “Adjustment Number”).
Following the payment of the full amount of the Series A Liquidation
Preference and the Common Adjustment in respect of all outstanding shares of Series A
Junior Participating Preferred Stock and Common Stock, respectively, holders of
Series A Junior Participating Preferred Stock and holders of shares of
Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number to 1
with respect to such Preferred Stock and Common Stock, on a per share basis,
respectively.


 


(B)                                In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference
and the liquidation preferences of all other series of Preferred Stock, if any,
which rank on a parity with the Series A Junior Participating Preferred
Stock, then such remaining assets shall be distributed ratably to the holders
of such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not sufficient assets
available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.


 


(C)                                In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the Adjustment Number in effect immediately
prior to such event shall be adjusted by multiplying such Adjustment Number by
a fraction the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.


 


Section 7.                                            Consolidation,
Merger, Etc.  In case the
Corporation shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common 


 


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Stock are exchanged for or
changed into other stock or securities, cash and/or any other property, then in
any such case the shares of Series A Junior Participating Preferred Stock
shall at the same time be similarly exchanged or changed in an amount per share
(subject to the provision for adjustment hereinafter set forth) equal to 1000
times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Series A
Junior Participating Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.


 


Section 8.                                            No
Redemption. The shares of Series A Junior Participating
Preferred Stock shall not be redeemable.


 


Section 9.                                            Ranking.  The Series A Junior Participating
Preferred Stock shall rank junior to all other series of the Corporation’s
Preferred Stock which may be issued from time to time as to the payment of
dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.


 


Section 10.                                      Amendment.  At any time when any shares of Series A
Junior Participating Preferred Stock are outstanding, neither the Restated
Certificate of Incorporation of the Corporation nor this Certificate of
Designation shall be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of a majority or more of the outstanding shares
of Series A Junior Participating Preferred Stock, voting separately as a
class.


 


Section 11.                                      Fractional
Shares.  Series A
Junior Participating Preferred Stock may be issued in fractions of a share
which shall entitle the holder, in proportion to such holder’s fractional
shares, to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders of Series A
Junior Participating Preferred Stock.


 


No stockholder shall have any preemptive right to
subscribe to an additional issue of capital stock or to any security
convertible into such capital stock.


 


ARTICLE
IV


 


The business and affairs of
the Corporation shall be managed by or under the direction of a Board of
Directors. Except to the extent prohibited by law, the Board of Directors shall
have the right (which, to the extent exercised, shall be exclusive) to
establish the rights, powers, duties, rules and procedures (a) that
from time to time shall govern the Board of Directors and each of its members
including without limitation the vote required for any action by the Board of
Directors, and (b) that from time to time shall affect the directors’
power to manage and direct 


 


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the business and affairs of the Corporation; and Article V
notwithstanding, no By-Law shall be adopted by the stockholders of the
Corporation which shall impair or impede the implementation of the foregoing.


 


The Board of Directors shall
consist of a number of directors, which number shall be determined from time to
time exclusively by the Board of Directors pursuant to a resolution adopted by
affirmative vote of a majority of the entire Board of Directors. The directors
shall be divided into three classes as nearly equal in number as possible,
designated Class I, Class II and Class III. At the 1983 annual
meeting of stockholders, Class I directors shall be elected for a term
expiring at the 1984 annual meeting of stockholders, Class II directors
shall be elected for a term expiring at the 1985 annual meeting of
stockholders, and Class III directors shall be elected for a term expiring
at the 1986 annual meeting of stockholders. At each annual meeting of
stockholders following such initial classification and election, directors
elected to succeed those directors whose terms expire shall be elected for a
term of office to expire at the third succeeding annual meeting of stockholders
after their election. Notwithstanding the foregoing, (1) at the 2011 annual
meeting of stockholders, the directors whose terms expire at that meeting shall
be elected to hold office for a two-year term expiring at the 2013 annual
meeting of stockholders; (2) at the 2012 annual meeting of stockholders,
the directors whose terms expire at that meeting shall be elected to hold
office for a one-year term expiring at the 2013 annual meeting of stockholders;
and (3) at the 2013 annual meeting of stockholders and each annual meeting
of stockholders thereafter, all directors shall be elected for a one-year term
expiring at the next annual meeting of stockholders. Pursuant to such
procedures, effective as of the 2013 annual meeting of stockholders, the Board
of Directors will no longer be classified under Section 141(d) of the
General Corporation Law of Delaware.


 


Notwithstanding the
foregoing, whenever the holders of any one or more classes or series of
Preferred Stock shall have the right, voting separately by class or series, to
elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of the applicable designation of the powers,
preferences and rights made pursuant to Article III, and such directors so
elected shall not be divided into classes pursuant to this Article V
unless expressly provided by such terms.


 


Subject to the rights of the
holders of any class or series of the then outstanding capital stock of the
Corporation entitled to vote generally in the election of directors, newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
may be filled only by a majority vote of the directors then in office, though
less than a quorum, and directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of office of
the class to which they have been elected expires. No decrease in the number of
authorized directors constituting the entire Board of Directors shall shorten
the term of any incumbent director. Subject to the rights of the holders of any
class or series of the capital stock then outstanding, (x) until the 2013
annual meeting of stockholders and in accordance with Section 141(k)(1) of
the General Corporation Law of Delaware, any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and (y) from
and after the 2013 annual meeting of stockholders, any director, or the entire
Board of Directors, may be removed from office at any time, with or without
cause.


 


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No director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty by such director as a
director; provided, however, that this Article IV shall not eliminate or
limit the liability of a director to the extent provided by applicable law (i) for
any breach of the director’s duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under Section 174
of the General Corporation Law of Delaware, or (iv) for any transaction
from which the director derived an improper personal benefit. No amendment to
or repeal of this Article IV shall apply to, or have any effect on, the
liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.


 


ARTICLE
V


 


The Board of Directors may
from time to time, by vote of a majority of its members, alter, amend or
rescind all or any of the By-Laws of the Corporation, as permitted by law,
subject to the power of the stockholders to change or repeal such By-Laws.


 


ARTICLE
VI


 


(A)                              (1)  In addition to any affirmative vote required by law
or the Certificate of Incorporation or By-Laws of the Corporation, and except
as otherwise expressly provided in paragraph B of this Article VI.


 


(a)                                  any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or not
itself an Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of an Interested
Stockholder; or


 


(b)                                 any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or with
any Interested Stockholder or any Affiliate of any Interested Stockholder
involving any assets or securities of the Corporation, any Subsidiary or any
Interested Stockholder or any Affiliate of any Interested Stockholder, having
an aggregate Fair Market Value (as hereinafter defined) of $10,000,000 or more;
or


 


(c)                                  the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder; or


 


(d)                                 any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or otherwise involving an Interested
Stockholder) which has the effect, directly or indirectly, of increasing the
proportionate share of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly beneficially
owned by any Interested Stockholder or any Affiliate of any Interested
Stockholder; or


 


(e)                                  any agreement, contract or other arrangement providing for any
one or more of the actions specified in clauses (a) to (d) of this
subparagraph (1), shall require the 


 


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affirmative
vote of at least eighty percent (80%) of the voting power of all of the then
outstanding shares of the Voting Stock (as hereinafter defined) voting together
as a single class (it being understood that, for purposes of this Article VI,
each share of the Preference Stock (as hereinafter defined) which is Voting
Stock shall have the number of votes granted to it pursuant to the applicable
Preferred Stock Designation (as hereinafter defined) or Article III of
this Certificate of Incorporation). Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.


 


(2)                                  The term “Business Combination” as used in this Article VI
shall mean any transaction which is referred to in any one or more of clauses (a) through
(e) of subparagraph (1) of paragraph A.


 


(B)                                The provisions of paragraph A of this Article VI shall
not be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote, if any, as is required by
law and any other provision of the Certificate of Incorporation or the By-Laws
of the Corporation, if all of the conditions specified in either of the
following subparagraphs (1) or (2) are met:


 


(1)                                  The Business Combination shall have been approved (whether
such approval is made prior to or subsequent to the acquisition of beneficial
ownership of the Voting Stock which caused the Interested Stockholder to become
an Interested Stockholder) by a majority of the Continuing Directors (as hereinafter
defined).


 


(2)                                  All of the following conditions shall have been met:


 


(a)                                  The consideration to be received by holders of a particular
class of outstanding Voting Stock shall be in cash or in the same form as
previously paid by or on behalf of the Interested Stockholder in connection
with its direct or indirect acquisition of beneficial ownership of shares of
such class of Voting Stock. If the consideration so paid for shares of any
class of Voting Stock varied as to form, the form of consideration for such
class of Voting Stock shall be either cash or the form used to acquire
beneficial ownership of the largest number of shares of such class of Voting
Stock previously acquired by the Interested Stockholder.


 


(b)                                 The aggregate amount of (x) cash and (y) the Fair
Market Value as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of Common
Stock in such Business Combination shall be at least equal to the higher amount
determined under subclauses (i) and (ii) below:


 


(i)                           (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers’ fees) paid by or
on behalf of the Interested Stockholder for any share of Common Stock in connection
with the acquisition by the Interested Stockholder of beneficial ownership of
such share (x) within the two-year period immediately prior to the first
public announcement of the proposal of the Business Combination (the “Announcement
Date”) or (y) in the transaction in which the Interested Stockholder
became an Interested Stockholder, whichever is higher; and


 


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(ii)                        the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested Stockholder became an
Interested Stockholder (such latter date is referred to in this Article VI
as the “Determination Date”), whichever is higher.


 


(c)                                  The aggregate amount of (x) cash and (y) the Fair
Market Value as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of shares of
any class of outstanding Preference Stock, shall be at least equal to the
highest amount determined under subclauses (i), (ii) and (iii) below:


 


(i)                           (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers’ fees) paid by or
on behalf of the Interested Stockholder for any share of such class of
Preference Stock in connection with the acquisition by the Interested
Stockholder of beneficial ownership of such share (x) within the two-year
period immediately prior to the Announcement Date or (y) in the
transaction in which the Interested Stockholder became an Interested
Stockholder, whichever is higher;


 


(ii)                        the Fair Market Value per share of such class of Preference
Stock on the Announcement Date or on the Determination Date, whichever is
higher; and


 


(iii)                     the
highest preferential amount per share to which the holders of shares of such
class of Preference Stock would be entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, regardless of whether the Business Combination to be consummated
constitutes such an event.


 


The provisions of this subparagraph (2) (c) shall
be required to be met with respect to every class of outstanding Preference
Stock, whether or not the Interested Stockholder has previously acquired
beneficial ownership of any shares of a particular class of Preference Stock.


 


(d)                                 After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination: (i) there
shall have been no failure to declare and pay at the regular date therefor any
full dividends (whether or not cumulative) on the outstanding Preference Stock,
except as approved by a majority of the Continuing Directors; (ii) there shall
have been (x) no reduction in the annual rate of dividends paid on the
Common Stock (except as necessary to reflect any subdivision of the Common
Stock), except as approved by a majority of the Continuing Directors, and (y) an
increase in such annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect of reducing the
number of outstanding shares of Common Stock unless the failure so to increase
such annual rate is approved by a majority of the Continuing Directors; and (iii) such
Interested Stockholder shall not have become the beneficial owner of any
additional shares of Voting Stock except as part of the transaction which
results in such Interested Stockholder becoming an Interested Stockholder and
except in a transaction which, after giving effect thereto, would not result in
any increase in the Interested Stockholder’s percentage beneficial ownership of
any class of Voting Stock.


 


(e)                                  After becoming an Interested Stockholder, such Interested
Stockholder shall not have received the benefit, directly or indirectly (except
proportionately as a stockholder 


 


12

















 


of the
Corporation), of any loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided by the
Corporation, whether in anticipation of or in connection with such Business
Combination or otherwise.


 


(f)                                    A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (“the Act”)
(or any subsequent provisions replacing such Act, rules or regulations)
shall be mailed to all stockholders of the Corporation at least 30 days prior
to the consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or any
subsequent provisions).


 


(g)                                 Such Interested Stockholder shall not have made any major
change in the Corporation’s business or equity capital structure without the
approval of a majority of the Continuing Directors.


 


(C)                                For the purposes of this Article VI:


 


(1)                                  The term “person” shall mean any individual, firm,
corporation or other entity.


 


(2)                                  The term “Interested Stockholder” shall mean any person
(other than the Corporation or any Subsidiary) who or which:


 


(a)                                  is the beneficial owner, directly or indirectly, of more than
ten percent (10%) of the voting power of the outstanding Voting Stock; or


 


(b)                                 is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the beneficial
owner, directly or indirectly, of ten percent (10%) or more of the voting power
of the then outstanding Voting Stock; or


 


(c)                                  is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period immediately
prior to the date in question beneficially owned by an Interested Stockholder,
if such assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering within
the meaning of the Securities Act of 1933.


 


(3)                                  A person shall be a “beneficial owner” of any Voting Stock:


 


(a)                                  which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or


 


(b)                                 which such person or any of its Affiliates or Associates has,
directly or indirectly, (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii) the
right to vote pursuant to any agreement, arrangement or understanding; or


 


13

















 


(c)                                  which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.


 


(4)                                  For the purposes of determining whether a person is an
Interested Stockholder pursuant to subparagraph (2) of this paragraph C,
the number of shares of Voting Stock deemed to be outstanding shall include
shares deemed owned through application of subparagraph (3) of this
paragraph C but shall not include any other shares of Voting Stock which may be
issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.


 


(5)                                  The terms “Affiliate” or “Associate” shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on January 1,
1983.


 


(6)                                  The term “Subsidiary” means any corporation of which a
majority of any class of equity security is owned, directly or indirectly, by
the Corporation; provided, however, that for the purposes of the definition of
Interested Stockholder set forth in subparagraph (2) of this paragraph C,
the term “Subsidiary” shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the Corporation.


 


(7)                                  The term “Continuing Director” means any member of the Board
of Directors of the Corporation (the “Board”), who is unaffiliated with the
Interested Stockholder and was a member of the Board prior to the time that the
Interested Stockholder became an Interested Stockholder, and any successor of a
Continuing Director, while such successor is a member of the Board, who is
unaffiliated with the Interested Stockholder and is recommended or elected to
succeed a Continuing Director by a majority of Continuing Directors.


 


(8)                                  The term “Fair Market Value” means (a) in the case of
stock, the highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the New York Stock
Exchange, or, if such stock is not listed on such Exchange, on the principal
United States Securities Exchange registered under the Securities Exchange Act
of 1934 on which such stock is listed, or, on the National Association of
Securities Dealers, Inc. (“NASD”) National Market if such stock is not
listed on a registered Securities Exchange but is quoted on the NASD National
Market, or, if such stock is not so listed or quoted, the highest closing bid
quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the NASD Automated Quotations System or any
system then in use, or if no such quotations are available, the fair market
value on the date in question of a share of such stock as determined by a
majority of the Continuing Directors in good faith; and (b) in the case of
property other than cash or stock, the fair market value of such property on
the date in question as determined in good faith by a majority of the
Continuing Directors.


 


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(9)                                  The term “Preference Stock” shall mean the Preferred Stock
and any other class of preference stock which may from time to time be
authorized in or by the Certificate of Incorporation of the Corporation and
which by the terms of its issuance is specifically designated “Preference Stock”
for purposes of this Article VI.


 


(10)                            The term “Preferred Stock Designation” shall mean any
designation of the powers, preferences and rights made pursuant to Article III
and filed with the Secretary of State of the State of Delaware.


 


(11)                            The term “Voting Stock” shall mean all of the shares of
capital stock of the Corporation outstanding from time to time and entitled to
vote generally in the election of directors.


 


(12)                            In the event of any Business Combination in which the
Corporation survives, the phrase “consideration other than cash to be received”
as used in subparagraphs (2)(b) and (c) of paragraph B of Article VI
shall include the shares of Common Stock and/or the shares of any other class
of Voting Stock retained by the holders of such shares.


 


(D)                               Nothing contained in this Article VI shall be construed
to relieve any Interested Stockholder from any fiduciary obligation imposed by
law.


 


(E)                                 The fact that any Business Combination complies with the
provisions of paragraph B of this Article VI shall not be construed to
impose any fiduciary duty, obligation or responsibility on the Board of
Directors, or any member thereof, to approve such Business Combination or
recommend its adoption or approval to the stockholders of the Corporation, nor
shall such compliance limit, prohibit or otherwise restrict in any manner the
Board of Directors, or any member thereof, with respect to evaluations of or
actions and responses taken with respect to such Business Combination.


 


(F)                                 Notwithstanding any other provisions of the Certificate of
Incorporation of the Corporation or any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any affirmative vote of the
holders of any particular class or series of Voting Stock required by law, the Certificate
of Incorporation of the Corporation or any Preferred Stock Designation, the
affirmative vote of the holders of at least eighty percent (80%) of the voting
power of all of the then outstanding shares of Voting Stock, voting together as
a single class, shall be required to amend or repeal this Article VI, or
adopt any provisions inconsistent with this Article VI; provided that,
this paragraph F shall not apply to, and such eighty percent (80%) vote shall
not be required for, any amendment, repeal or adoption unanimously recommended
by the Board of Directors of the Corporation if all of such directors are
persons who would be eligible to serve as Continuing Directors.


 


ARTICLE
VII


 


The address of the
Corporation’s registered office in the State of Delaware is 1209 Orange Street,
in the City of Wilmington, County of New Castle. The name of its registered
agent at such address is The Corporation Trust Company.


 


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IN WITNESS WHEREOF, Ecolab Inc.
has caused this Restated Certificate of Incorporation to be signed by Lawrence
T. Bell, its General Counsel and Secretary, this 6th day of May, 2010.


 


 


	
   

  	
  ECOLAB
  INC.

  
	
   

  	
   

  
	
   

  	
  /s/Lawrence
  T. Bell

  
	
   

  	
  By:
  

  	
  Lawrence
  T. Bell

  
	
   

  	
  Its:
  

  	
  General
  Counsel and Secretary

  



 


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