EXHIBIT (10)L


 


ECOLAB
MIRROR SAVINGS PLAN


 


(As Amended and
Restated Effective as of January 1, 2005)


 


WHEREAS, the Company previously established the Ecolab Mirror Savings
Plan (the “Plan”) to provide additional deferred compensation benefits for
certain management and highly compensated employees who perform management and
professional functions for the Company and certain related entities; and


 


WHEREAS, the American Jobs Creation Act of 2004, P.L. 108-357 (the “AJCA”)
added a new Section 409A to the Code, which significantly changed the
Federal tax law applicable to “amounts deferred” under the Plan after December 31,
2004; and


 


WHEREAS, the IRS and U.S. Treasury subsequently issued regulations and
other guidance regarding the requirements of and compliance with Code Section 409A;
and


 


WHEREAS, the Board of Directors of the Company directed and authorized
appropriate officers of the Company to amend the Plan to comply, with respect
to the Executives’ Post-2004 Sub-Accounts, with the requirements of Code Section 409
and guidance issued thereunder; and


 


WHEREAS, the Company desires to bifurcate the Plan into an “excess plan”
(referred to in the Plan as “Primary Deferrals”) and a deferred savings plan
(referred to in the Plan as “Secondary Deferrals”), with the former
constituting an “excess plan” for purposes of Minnesota state income tax; and


 


WHEREAS, pursuant to Section 5.1 of the Ecolab Inc. Administrative
Document for Non-Qualified Benefit Plans, Ecolab Inc. (the “Company”) hereby
amends and restates the Plan in its entirety to read as follows:


 


ARTICLE
I

PREFACE


 


SECTION 1.1                         Effective
Date.  The effective date of this
amendment and restatement of the Plan is January 1, 2005, except as
otherwise provided in this amendment and restatement.  The benefit, if any, payable with respect to
a former Executive who terminated employment prior to the Effective Date (and
who is not rehired by a member of the Controlled Group thereafter) shall be
determined by, and paid in accordance with, the terms and provisions of the
Plan as in effect prior to the Effective Date, subject to Section 1.4.


 


SECTION 1.2                         Purpose
of the Plan.  The purpose of this
Plan is to provide additional deferred compensation benefits for certain
management and highly compensated employees who perform management and
professional functions for the Company and certain related entities.


 


SECTION 1.3                         Administrative
Document.  This Plan includes the
Ecolab Inc. Administrative Document for Non-Qualified Benefit Plans (the “Administrative
Document”), which is incorporated herein by reference.


 


SECTION 1.4                         American
Jobs Creation Act (AJCA).


 


(1)           It is intended that
the Plan (including all Amendments thereto) comply with the provisions of Section 409A
of the Code, as enacted by the AJCA, to prevent the inclusion in gross income
of any amount credited to an Executive’s Account hereunder in a taxable year
that is prior to the taxable year or years in which such amounts would
otherwise be actually distributed or made available to the Executive.  It is intended that the Plan shall be
administered in a manner that will comply with Section 409A of the Code,
including proposed, temporary or final regulations or any


 

















 


other guidance
issued by the Secretary of the Treasury and the Internal Revenue Service with
respect thereto (collectively with the AJCA, the “409A Guidance”).  All Plan provisions shall be interpreted in a
manner consistent with the 409A Guidance.


 


(2)           The Administrator
shall not take any action hereunder that would violate any provision of the
409A Guidance.  It is intended that all
Executives’ elections hereunder will comply with the 409A Guidance.  The Administrator is authorized to adopt rules or
regulations deemed necessary or appropriate in connection therewith to
anticipate and/or comply with the requirements thereof (including any
transition or grandfather rules thereunder).  In this regard, the Administrator is
authorized to permit Executive elections with respect to amounts deferred after
December 31, 2004 and is also permitted to give the Executives the right
to amend or revoke such elections in accordance with the 409A Guidance.  Notwithstanding the foregoing, neither the
Company nor the Administrator guarantee any tax consequences of any Participant’s
participation in, deferrals or contributions under, or payments from, the Plan,
and each Participant shall be solely responsible for payment of any tax
obligations of such Participant incurred in connection with participation in
the Plan.


 


(3)           In furtherance of,
but without limiting the foregoing, any Executive Deferrals and Matching
Contributions (and the earnings thereon) that are deemed to have been deferred
prior to January 1, 2005 and that qualify for “grandfathered status” under
Section 409A of the Code shall continue to be governed by the law applicable
to nonqualified deferred compensation prior to the addition of Section 409A
to the Code and shall be subject to the terms and conditions specified in the
Plan as in effect prior to January 1, 2005.  In particular, to the extent permitted under
the 409A Guidance, the Bonus Deferrals relating to a Bonus that is earned
during 2004, but paid in 2005, shall be allocated to the Executive’s Pre-2005
Sub-Account hereunder.


 


SECTION 1.5                         Excess
Plan.  Effective January 1,
2009, (a) all Account balances under the Plan that are attributable to
Executive and Company contributions to the Plan made with respect to Plan Years
beginning on and after January 1, 2009 (as adjusted for earnings, losses,
expenses and distributions) that were not permitted under the Savings Plan due
to contribution 


limitations
imposed on “qualified plans” by the Internal Revenue Code, specifically
including Code Sections 401(a)(17), 401(k), 401(m), 402(g) and 415,
shall be accounted for separately and shall be, for purposes of any applicable
federal and state tax law, an “excess plan” (the “Primary Deferrals”); and (b) all
Account balances other than the Primary Deferrals Account balances shall be
accounted for separately and shall be a deferred savings plan (the “Secondary
Deferrals”).


 


ARTICLE
II

DEFINITIONS


 


Words and phrases when used herein with initial capital letters which
are defined in the Savings Plan or the Administrative Document are used herein
as so defined, unless otherwise specifically defined herein or the context
clearly indicates otherwise.  The
following words and phrases when used in this Plan with initial capital letters
shall have the following respective meanings, unless the context clearly
indicates otherwise:


 


SECTION 2.1                         “Account”
shall mean the record maintained in accordance with Section 3.4 by the
Company for each Executive’s Mirror Savings Benefit.  The Executive’s Account shall be further
divided into the following two Sub-Accounts: 
(a) the “Pre-2005 Sub-Account” for amounts that are “deferred” (as
such term is defined in the 409A Guidance) as of December 31, 2004 ( and
earnings thereon), which includes the Minimum Benefit, and (b) the “Post-2004
Sub-Account” for amounts that are deferred after December 31, 2004 (and
earnings thereon).  Effective as of January 1,
2009, each Executive’s Pre-2005 Sub-Account shall be part of the Secondary
Deferrals.  Effective as of January 1,
2009, the Administrator shall establish, under the Executive’s Post-2004
Sub-Account, (i) the Primary Deferrals Sub-Account consisting of (A) the
Executive’s Deferrals with respect to Base Salary and Bonus earned in Plan
Years


 


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beginning on and after January 1, 2009 (and
earnings thereon) that the Executive was precluded from deferring under the
Savings Plan due to contribution limitations imposed on “qualified plans” by
the Code, and (B) Matching Contributions made on the Executive’s behalf
with respect to Plan Years beginning on or after January 1, 2009 (and
earnings thereon), and (ii) the Secondary Deferrals Sub-Account consisting
of the Executive’s Post-2004 Sub-Account balances other than the Primary
Deferrals Sub-Account balances.


 


SECTION 2.2                         “Base
Salary” shall mean an Executive’s base salary for the Plan Year (including,
for this purpose, any salary reductions caused as a result of participation (1) in
an Employer-sponsored plan which is governed by Sections 401(k), 132(f)(4) or
125 of the Code or (2) in this Plan).


 


SECTION 2.3                         “Bonus.”
An Executive’s Bonus for a Plan Year is equal to the sum of (1) the annual
cash incentive bonus under the Company’s Management Incentive Plan and/or, if
applicable, the Company’s Management Performance Incentive Plan, and (2) any
similar annual cash incentive bonus under any other equivalent Employer-sponsored
bonus program (as determined by the Administrator), which, in either case, is
earned with respect to services performed by the Executive during such Plan
Year, whether or not such Bonus is actually paid to the Executive during such
Plan Year.  An election to defer a Bonus
under this Plan must be made before the period in which the service is
performed which gives rise to such Bonus.


 


SECTION 2.4                         “Death
Beneficiary.”


 


(1)           The term “Death
Beneficiary” shall mean the person or persons designated by the Executive to
receive Mirror Savings Benefits hereunder in the event of his death.  The designation of a Death Beneficiary under
the Plan may be made, and may be revoked or changed only by an instrument (in
form prescribed by Administrator) signed by the Executive and delivered to the
Administrator during the Executive’s lifetime. 
If the Executive is married on the date of his death and has been
married to such spouse throughout the one-year period ending on the date of
death, his designation of a Death Beneficiary other than, or in addition to,
his spouse under the Plan shall not be effective unless such spouse has
consented in writing to such designation.


 


(2)           Any Mirror Savings
Benefits remaining to be paid after the death of a Death Beneficiary shall be
paid to the Death Beneficiary’s estate, except as otherwise provided in the
Executive’s Death Beneficiary designation.


 


SECTION 2.5                         “Disability”
or “Disabled.”  With respect to an
Executive’s Pre-2005 Sub-Account, an Executive shall be deemed to have a “Disability”
or be “Disabled” if the Executive’s employment with an Employer terminates due
to a disability that entitles the Executive to benefits under (1) any
long-term disability plan sponsored by the Company, or (2) in the event
that the Executive is not a participant in any such plan, the Social Security
Act of the United States.


 


SECTION 2.6                         “Executive”
shall mean an Employee (1) whose annualized Annual Compensation (excluding
severance pay) and target bonus for any Plan Year exceeds the limitation described
in Code Section 401(a)(17), and (2) who is selected by the
Administrator to participate in the Plan. 
Once an Employee has satisfied the requirements of an Executive and
commenced participation in the Plan, his participation may continue, notwithstanding
the fact that his Annual Compensation is reduced below the limitation described
in Code Section 401(a)(17), until the Administrator determines, in his or
her sole discretion, that the Employee would fail to satisfy the requirements
of a “management or highly compensated employee” under ERISA.


 


SECTION 2.7                         “Executive
Deferrals” shall mean the amounts described in Section 3.1.


 


SECTION 2.8                         “Hypothetical
Investment Fund” shall mean the investment funds designated by the Company
pursuant to Section 6.1.


 


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SECTION 2.9                         “Insolvent.”
For purposes of this Plan, an Employer shall be considered Insolvent at such
time as it (1) is unable to pay its debts as they mature, or (2) is
subject to a pending voluntary or involuntary proceeding as a debtor under the
United States Bankruptcy Code.


 


SECTION 2.10                       “Matching
Contributions” shall mean the amounts described in Section 3.3.


 


SECTION 2.11                       “Minimum
Benefit” shall mean the sum of the portions of the Executive’s Account
attributable to amounts credited under a prior plan (the “Prior Plan”),
including (1) his or her Account balance as of September 1, 1994, and
(2) any deferral of his Bonus payable with respect to calendar 1994 and
the Matching Contribution thereon.


 


SECTION 2.12                       “Mirror
Savings Benefit.” An Executive’s Mirror Savings Benefit at any particular
time shall be equal to the vested amounts credited to his Account at such time,
as determined under Articles III and V.


 


SECTION 2.13                       “Plan”
shall mean the Ecolab Mirror Savings Plan, as described herein and as it may be
amended from time to time.


 


SECTION 2.14                       “Savings
Plan” shall mean the Ecolab Savings Plan and ESOP, as such plan may be
amended from time to time.


 


SECTION 2.15                       “Separation
from Service” or to “Separate from Service” shall mean any
termination of employment with the Controlled Group due to retirement, death,
disability or other reason; provided, however, that no Separation from Service
is deemed to occur while the Executive (1) is on military leave, sick
leave, or other bona fide leave of absence that does not exceed six (6) months
(or, in the case of disability, twelve (12) months), or if longer, the period
during which the Executive’s right to reemployment with the Controlled Group is
provided either by statute or by contract, or (2) continues to perform
services for the Controlled Group at an annual rate of fifty percent (50%) or
more of the average level of services performed over the immediately preceding
36-month period (or the full period in which the Executive provided services
(whether as an employee or as an independent contractor) if the Executive has
been providing services for less than 36 months).  For purposes of this Section, “disability”
shall mean any medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a continuous period
of not less than six months, where such impairment causes the Executive to be
unable to perform the duties of his or her position of employment or any
substantially similar position of employment. 
Whether an Executive has incurred a Separation from Service shall be
determined in accordance with the 409A Guidance.


 


SECTION 2.16                       “Specified
Employee” shall mean “Specified Employee” as defined in the Administrative
Document.


 


SECTION 2.17                       “Unforeseeable
Emergency.” With respect to an Executive’s Post-2004 Sub-Account, “Unforeseeable
Emergency” shall mean an event which results in a severe financial hardship to
the Executive as a consequence of (1) an illness or accident of the
Executive, the Executive’s spouse, Death Beneficiary or a dependent (as defined
in Section 152(a) of the Code, without regard to Section 152(b)(1),
(b)(2), and (d)(1)(B)), (2) loss of the Executive’s property due to
casualty (including the need to rebuild a home following damage to a home not
otherwise covered by insurance, for example, not as a result of a natural
disaster) or (3) other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the
Executive.  With respect to an Executive’s
Pre-2005 Sub-Account, “Unforeseeable Emergency” shall mean an event which
results (or will result) in severe financial hardship to the Executive as a
consequence of an unexpected illness or accident or loss of the Executive’s
property due to casualty or other similar extraordinary or unforeseen
circumstances out of the control of the Executive, determined in accordance
with Treas. Reg. § 1.409A-2(i)(3).


 


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ARTICLE III

MIRROR SAVINGS BENEFIT


 


SECTION 3.1                         Amount
of Executive Deferrals.  Each
Executive may, within 30 days after the Plan becomes effective as to him and,
thereafter, prior to the first day of any subsequent Plan Year, by written
notice to the Administrator on a form provided by the Administrator, direct his
Employer:


 


(1)           to reduce (in
accordance with rules established by the Administrator) the Executive’s
Base Salary for the balance of the Plan Year in which the Plan becomes
effective as to him (but only with respect to Base Salary payable for periods
of service commencing after the Executive so directs) or for any following Plan
Year (a) by a specified dollar amount or percentage, and/or (b) by an
amount determined by the Administrator that is equal to five percent of
Executive’s Base Salary in excess of the limitation described in Code Section 401(a)(17)
for the Plan Year (limited to a maximum Salary Deferral of 25% of the Executive’s
Base Salary in the deferral period) (the “Salary Deferrals”), and


 


(2)           to reduce (in
accordance with rules established by the Administrator) the Executive’s
Bonus which is earned during the Plan Year (a) by a specified dollar
amount or percentage, and/or (b) by an amount determined by the
Administrator, that is equal to five percent of the portion of the Executive’s
Bonus earned during the deferral period which, when added to the Executive’s
Base Salary for the deferral period, is in excess of the limitation described
in Code Section 401(a)(17) of the Plan Year (up to a maximum of 100% of
the Executive’s Bonus) (the “Bonus Deferrals”), and


 


(3)           to credit the
amounts described in Subsections (1) and (2) of this Section (collectively,
the “Executive Deferrals”) to the Account described in Section 3.4 at the
times described therein.


 


SECTION 3.2                         Effect
and Duration of Direction Pursuant to Section 3.1.


 


(1)           Plan Year to Plan
Year.  Any direction by an Executive
to make Executive Deferrals under Section 3.1 shall be effective with
respect to the Base Salary and Bonus otherwise earned by the Executive with
respect to the period to which the direction relates, and the Executive shall
not be eligible to receive such Executive Deferrals.  Instead, such Executive Deferrals shall be
credited to the Executive’s Account as provided in Section 3.4.  Any direction made in accordance with Section 3.1
shall remain in effect until changed or revoked, except that such direction
shall become irrevocable on the last day of the Plan Year immediately preceding
the Plan Year with respect to which the Base Salary and Bonus subject to such
direction are earned (or, with respect to the first period of eligibility, such
direction shall be irrevocable on the last day of the 30-day election period
with respect to Base Salary and Bonus earned during the same Plan Year after
the election).  An Executive may change
or revoke a direction with respect to the deferral of Base Salary and Bonus
earned in a subsequent Plan Year at any time prior to such direction becoming
irrevocable.  Notwithstanding the foregoing,
all Executives shall be required to make a deferral election for the 2005 Plan
Year by December 31, 2004, and prior elections 


shall not be given
any further force or effect (except that the Executive’s Bonus Deferral
election for the Bonus that is earned in the 2004 Plan Year shall continue in
effect in accordance with its terms).


 


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(2)           Automatic
Termination/Suspension of Deferral Election.


 


(a)           An
Executive Deferral direction pursuant to Section 3.1 shall automatically
terminate on the date of the Executive’s Separation from Service or, to the
extent permitted by the 409A Guidance, on the date the Plan is terminated.


 


(b)           An Executive’s
direction pursuant to Section 3.1 shall automatically be cancelled from
the first day of the first payroll period in which the Executive receives a
hardship distribution under the Savings Plan or a distribution due to an
Unforeseeable Emergency under this Plan through the last day of the Plan Year
containing the six-month anniversary date of such hardship distribution or a
distribution due to an Unforeseeable Emergency but will automatically be
reinstated thereafter (unless otherwise changed in accordance with Subsection (1) hereof).


 


SECTION 3.3                         Matching Contributions.


 


(1)           Matching
Contributions With Respect to Salary Deferrals.


 


(a)           The
Employers shall credit the Account of an Executive with an amount (the “Matching
Contributions”) equal to the sum of (1) 100% of the Salary Deferrals which
do not exceed 3% of the Executive’s Base Salary and (2) 50% of the Salary
Deferrals which exceed 3% of the Executive’s Base Salary but do not exceed 5%
of the Executive’s Base Salary; provided, however, that such Matching
Contributions shall be reduced by the maximum amount (as determined by the
Administrator) of matching contributions that could be made to the Executive’s
account under the Savings Plan for such Plan Year based on the Executive’s Base
Salary for such Plan Year, assuming that the Executive has elected to
contribute five percent of this Base Salary to the Savings Plan.


 


(b)           The Employers shall
also credit the Account of an Executive with an additional Matching
Contribution in an amount determined by the Administrator, which amount is
equal to the amount of matching contributions (plus earnings allocable thereto)
which the Executive is required to forfeit under the Savings Plan due to the
application of the before-tax nondiscrimination requirements of the Code (the “True-Up
Matching Contributions”).


 


(2)           Matching Contributions
With Respect to Bonus Deferrals.  The
Employers shall credit the Account of an Executive with a Matching Contribution
equal to 100% of the first 3% of the Executive’s Bonus and 50% of the next 2%
of the Executive’s Bonus, provided, however, the amount of the Executive’s
Bonus that shall be taken into account under this Section 3.3(2) shall
not exceed the excess of the Executive’s Base Salary and Bonus in respect of
the Plan Year in which the Bonus was earned (excluding severance) over the
maximum compensation which could be considered under the Savings Plan in such
Plan Year under Section 401(a)(17) of the Code, and further provided that
an Executive’s Bonus shall be taken into account under this Section 3.3(2) only
to the extent the Executive has elected to defer payment of such Bonus under Section 3.1(2) for
the Plan Year.


 


SECTION 3.4                         Executives’
Accounts.  Each Employer shall
establish and maintain on its books an Account for each Executive which shall
contain the following entries:


 


(1)           Credits for the
Executive Deferrals described in Section 3.1, which Executive Deferrals
shall be credited to the Executive’s Account at the time such Executive
Deferrals would otherwise have been paid to the Executive;


 


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(2)           Credits for the
Matching Contributions described in Section 3.3(1)(a), which Matching
Contributions shall be credited to the Executive’s Account at the same time as
the underlying Salary Deferrals are credited thereto; but no earlier than when
the Executive has received (or has been deemed to receive) the maximum Matching
Contribution available under the Savings Plan (as determined by the
Administrator);


 


(3)           Credits for the
True-Up Matching Contributions described in Section 3.3(1)(b) at the
time designated by the Administrator following the end of the Plan Year when
the nondiscrimination test results under the Savings Plan are known;


 


(4)           Credits for the
Matching Contributions described in Section 3.3(2), which Matching
Contributions shall be credited to the Executive’s Account at the same time as
the underlying Bonus Deferrals are credited thereto;


 


(5)           Credits or charges
(including income, expenses, gains and losses) equal to the amounts which would
have been attributable to the Executive Deferrals and Matching Contributions if
such amounts had been invested on a tax deferred basis in the Hypothetical
Investment Fund(s) in which such amounts are deemed to have been invested
under Section 6.1.  The entries
provided by this Subsection (5) shall continue to be made until the
Executive’s entire vested Account has been distributed pursuant to Article IV;


 


(6)           Debits for any
distributions made from the Account pursuant to Article IV;


 


(7)           The Employers shall
make the above-described credits and debits to the Executive’s Pre-2005
Sub-Account or the Post-2004 Sub-Account, as applicable, in accordance with the
409A Guidance; and


 


(8)           Effective as of January 1,
2009, separate debits and credits shall be made to the Primary Deferrals
Sub-Account and the Secondary Deferrals Sub-Account of each Participant.


 


SECTION 3.5                         Statement
of Account.  The Company shall
deliver to each Executive a written statement of his Account not less
frequently than annually as of the end of each Plan Year.


 


ARTICLE IV

PAYMENT OF MIRROR SAVINGS BENEFITS


 


SECTION 4.1                         Time of Payment.


 


(1)           Payment
to Executives.


 


(a)           An
Executive shall be entitled to receive his Account upon the earlier of (i) with
respect to the Executive’s Pre-2005 Sub-Account, the date on which his or her
employment terminates due to Disability or (ii) the date of his or her
termination of employment with the Controlled Group for any reason, including
retirement (or, with respect to amounts that are allocated to an Executive’s
Post-2004 Sub-Account, thirty (30) days after the date of his or her Separation
from Service (or, in the case of the Executive’s election pursuant to Section 4.2(3)(b)(ii)(B),
on the date specified in such Section); provided, however, that distribution
made on account of Separation from Service shall be made, or commence to be
made, with respect to a Specified Employee on the date that is six months after
the date of the Separation from Service of the Specified Employee (or, if
earlier, the date of death), to the extent that Code Section 409A(a)(2)(B)(i) is
applicable, except that where the Executive makes an election pursuant to Section 4.2(3)(b)(ii)(B),
payment will be made on the date specified in such Section).  In the case of installment payments, the
first payment made to the Specified Employee following the 6-month delay


 


7

















 


shall be made on the first day of the seventh month
following the Separation from Service and shall include any Mirror Savings
Benefit payments that were not made as a result of the delay in payment
pursuant to this paragraph (a).


 


(b)           Notwithstanding the
foregoing, the Company may at any time, upon written request of the Executive,
cause to be paid to such Executive an amount equal to all or any part of the
Executive’s vested Account, other than the portion of his or her Account
attributable to Matching Contributions, if the Administrator determines, in its
sole and absolute discretion based on such reasonable evidence as it may
require, that such a payment or payments is necessary for the purpose of
alleviating the consequences of an Unforeseeable Emergency.  Payments made on account of an Unforeseeable
Emergency shall be permitted only to the extent the amount does not exceed the
amount reasonably necessary to satisfy the emergency need (plus, with respect
to payments made from an Executive’s Post-2004 Sub-Account, an amount necessary
to pay taxes reasonably anticipated as a result of the distribution) and may
not be made to the extent such Unforeseeable Emergency is or may be relieved
through reimbursement or compensation by insurance or otherwise, by liquidation
of the Executive’s assets (to the extent such liquidation would not itself
cause severe financial hardship) or, to the extent permitted by the 409A
Guidance, by cessation of the Executive Deferrals under this Plan.  However, the determination of amounts
reasonably necessary to satisfy the emergency need is not required to take into
account any additional compensation that due to the Unforeseeable Emergency is
available under another nonqualified deferred compensation plan but has not
actually been paid.


 


(c)           Notwithstanding any
provision of the Plan to the contrary, if the payment of all or any portion of
an Executive’s Account would, in the sole opinion of the Company on the advice
of its counsel, result in a profit recoverable by the Company under Section 16(b) of
the Securities Exchange Act of 1934, but for the operation of this paragraph,
then such payment (or portion thereof) shall be deferred and made at the earliest
time that such payment (or portion thereof) would no longer be subject to Section 16(b),
to the extent permitted by the 409A Guidance.


 


(2)           Payment to Death
Beneficiaries.  The Death Beneficiary
of a deceased Executive shall be entitled to receive the vested Account of the
Executive upon the death of the Executive. 
The Executive’s vested Account shall be distributed to the Death
Beneficiary on the sixtieth (60th)
day after the Executive’s death.


 


SECTION 4.2                         Form of
Payment.


 


(1)           Payment in Cash.  All distributions under the Plan shall be
made in the form of cash.


 


(2)           Normal Forms of
Payment.


 


(a)           Payments to
Executives.


 


(i)            Pre-2005
Sub-Accounts.  Unless otherwise
elected pursuant to Section 4.2(3), an Executive’s Pre-2005 Sub-Account
shall be distributed to the Executive in the form of a single lump sum payment.


 


(ii)           Post-2004
Sub-Accounts.  Unless otherwise
elected pursuant to Section 4.2(3), an Executive’s Post-2004 Sub-Account
shall be distributed to the Executive in the form of annual installment
payments payable over a period of ten (10) years.


 


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(b)           Payments to Death
Beneficiaries.  An Executive’s Mirror
Savings Benefit (or the remaining installments thereof if payment to the
Executive had commenced) shall be distributed to his or her Death Beneficiary
in the form of a single lump sum payment.


 


(c)           Small Benefits.  Notwithstanding any provision of the Plan to
the contrary, in the event that (i) an Executive’s Pre-2005 Sub-Account
does not exceed $25,000, such Sub-Account shall be paid to the Executive in the
form of a single lump sum payment at termination of employment with the
Controlled Group, and (ii) an Executive’s Post-2004 Sub-Account does not
exceed $25,000, such Sub-Account shall be paid to the Executive in the form of
a single lump sum payment at Separation from Service.


 


(d)           Payment of
Minimum Benefits.  Notwithstanding
the foregoing, an Executive’s Minimum Benefit shall be paid in the form
previously elected by the Executive under the Prior Plan, and such election
shall remain in full force and effect through the date of distribution.


 


(3)           Optional Forms of
Payment for Executives.


 


(a)           In General.  An Executive who does not want his or her
Mirror Savings Benefit to be paid in the normal form of benefit described in Section 4.2(2)(a) may
elect to receive his Pre-2005 Sub-Account in the form of annual installment
payments payable over a period not exceeding ten years (as elected by the
Executive) and may elect to receive his Post-2004 Sub-Account in the form of a
single lump sum payment or in the form of annual installment payments payable
over a period of five (5) or ten (10) years (as elected by the
Executive); provided, however, the election provided by this Section 4.2(3) shall
not apply to the Executive’s Minimum Benefit.  The amount of each installment
payment will be determined by dividing the balance of the Executive’s Mirror
Savings Benefit as of the distribution date for such installment payment by the
total number of remaining payments (including the current payment).  Effective as of January 1, 2009, an
Executive may make separate payment elections under this Section 4.2(3) with
respect to the Executive’s Primary Deferrals Sub-Account and Secondary
Deferrals Sub-Account.


 


(b)           Form/Timing of
Election.


 


(i)            Pre-2005
Sub-Accounts.  Any election of an
optional form of benefit made with respect to the Pre-2005 Sub-Account must be
in writing (on a form provided by the Administrator) and filed with the
Administrator prior to the Executive’s termination of employment with the
Controlled Group because of involuntary termination, death or Disability or at
least one (1) year prior to the Executive’s voluntary termination of
employment or retirement.  Any such
election may be changed at any time and from time to time without the consent
of any other person (except as described in Section 2.4), by filing a
later signed written election with the Administrator; provided that any
election made less than one (1) year prior to the Executive’s voluntary
termination of employment shall not be valid, and in such case, payment shall
be made in the normal form as provided in Section 4.2(2).


 


(ii)           Post-2004
Sub-Accounts.


 


(A)          In General.  Any election of an optional form of benefit
made with respect to the Post-2004 Sub-Account must be in writing (on a form
provided by the Administrator) and filed with the Administrator at the time the
Executive first becomes eligible to participate in the Plan and makes his
initial Executive Deferral election pursuant to Section 3.1.


 


9

















 


Effective as of January 1,
2009, an Executive may make separate payment elections under this Section 4.2(3)(b)(ii) with
respect to the Executive’s Primary Deferrals Sub-Account and Secondary Deferrals
Sub-Account.


 


(B)           Subsequent
Elections.  An Executive may change
his election of an optional form of benefit made pursuant to Section 4.2(3)(b)(ii)(A) at
any time and from time to time at least twelve (12) months before the Executive’s
Separation from Service.  The most recent
election on file with the Administrator (that was filed at least twelve (12)
months before the Executive’s Separation from Service and that remains on file
with the Administrator on the date of the Executive’s Separation from Service)
shall be given effect and shall become irrevocable on the date of the Executive’s
Separation from Service.  No prior or
subsequent election shall have any force or effect.  The payment of the Executive’s Post-2004
Sub-Account (or, effective January 1, 2009, the Executive’s Primary
Deferrals Sub-Account and Secondary Deferrals Sub-Account) pursuant to such
subsequent election shall be made or commence to be made on the date that is
five (5) years after the originally scheduled date of payment.


 


(C)           Transition
Elections.  Notwithstanding any
provision of the Plan to the contrary, an Executive may elect, without regard
to the five-year delay (as would be required under Section 4.2(3)(b)(ii)(B)),
to receive each of his or her Primary Deferrals Sub-Account and Secondary
Deferrals Sub-Account in a lump sum payment or in the form of five-year or
ten-year annual installment payments, to be made or commence on the date of his
or her Separation from Service.  The
transition election made under this clause (C) must be made no later than December 31,
2008 and may not cause any amount to be paid in 2008 if not otherwise payable
and may not delay beyond 2008 payment of any amount that is otherwise payable
in 2008.


 


ARTICLE V

VESTING


 


SECTION 5.1                         Vesting.


 


(1)           In General.  An Executive shall always be 100% vested in
both his Executive Deferrals and his Minimum Benefit under the Plan.  Subject to the provisions of Subsection (2) of
this Section, an Executive who is credited with an Hour of Service on or after March 1,
2002 shall be immediately 100% vested in all Matching Contributions hereunder.


 


(2)           Forfeiture
Provisions.


 


(a)           Notwithstanding the
provisions of Subsection (1) hereof, but subject to the requirements of
paragraph (b) of this Subsection, the Employers shall be relieved of any
obligation to pay or provide any future Mirror Savings Plan Benefits under this
Plan and shall be entitled to recover amounts already distributed if, without
the written consent of the Company, the Executive, whether before or after termination
with the Controlled Group (i) participates in dishonesty, fraud,
misrepresentation, embezzlement or deliberate injury or attempted injury, in
each case related to the Company or a Controlled Group member, (ii) commits
any unlawful or criminal activity of a serious nature, (iii) commits any
intentional and deliberate breach of a duty or duties that, individually or in
the aggregate, are material in relation to the Executive’s overall duties or (iv) materially
breaches any


 


10
















 


confidentiality or
noncompete agreement entered into with the Company or a Controlled Group
member.  The Employers shall have the
burden of proving that one of the foregoing events have occurred.  Notwithstanding the foregoing, the provisions
of this Subsection 2(a) shall not apply to an Executive’s Minimum Benefit
or the portion of the Executive’s Account which is attributable to his
Executive Deferrals.


 


(b)           Notwithstanding the
foregoing, an Executive shall not forfeit any portion of his Mirror Savings Plan
Benefits under paragraph (a) of this Subsection unless (i) the
Executive receives reasonable notice in writing setting forth the grounds for
the forfeiture, (ii) if requested by the Executive, the Executive (and/or
the Executive’s counsel or other representative) is granted a hearing before
the full Board of Directors of the Company (the “Board”) and (iii) a
majority of the members of the full Board determine that the Executive violated
one or more of the provisions of paragraph (a) of this Subsection.


 


ARTICLE VI

INVESTMENT OF ACCOUNTS


 


SECTION 6.1                         Hypothetical
Investment Funds.


 


(1)           Hypothetical
Investment Fund for Matching Contributions on or after January 1, 2006.  Matching Contributions made on or after January 1,
2006 shall be deemed to be made in cash and invested in accordance with the
Hypothetical Investment Fund election(s) in effect from time to time for
Executive Deferrals under Subsection (2) below.


 


(2)           Hypothetical
Investment Funds for Executive Deferrals. 
To the extent permitted by the 409A Guidance, the Hypothetical
Investment Funds for purposes of the portion of an Executive’s Account which is
attributable to his Executive Deferrals shall be those same Investment Funds
designated by the Company under the Savings Plan, provided, however that
effective January 1, 2006, the Ecolab Stock Fund will not be a
Hypothetical Investment Fund with respect to the investment of Executive
Deferrals made on or after January 1, 2006.  Each Executive (or his Death Beneficiary) may
elect, in a manner prescribed by the Administrator from time to time, one or
more Hypothetical Investment Funds in which his Executive Deferrals are deemed
to have been invested for purposes of crediting earnings and losses to the
portion of the Executive’s Account which is attributable to Executive
Deferrals, provided, however, that effective January 1, 2006, no Executive
or Death Beneficiary may elect the Ecolab Stock Fund as a Hypothetical
Investment Fund with respect to Executive Deferrals.  The Company may deem an Executive’s Executive
Deferrals to have been invested in the Hypothetical Investment Fund elected by
the Executive, if any, or may instead, in its sole discretion, deem such
Executive Deferrals to have been invested in one or more Hypothetical
Investment Funds selected by the Company. 
Earnings on any amounts deemed to have been invested in any Hypothetical
Investment Fund shall be deemed to have been reinvested in such Hypothetical
Investment Fund.  Notwithstanding the
foregoing, any Executive who is subject to Section 16(b) of the
Securities Exchange Act of 1934 may not elect and shall not be deemed to have
directed any Executive Deferrals to the Ecolab Stock Fund.  An Executive shall be deemed, on the day
prior to becoming subject to Section 16(b) or at such other time as
he is subject to Section 16(b), to have elected to have Executive
Deferrals then deemed to be invested in the Ecolab Stock Fund invested in the
Hypothetical Investment Fund that under the Savings Plan is designated as a
default investment fund, unless another permitted election is in place.


 


(3)           Expenses of
Hypothetical Investment Funds.  The
Hypothetical Investment Funds shall bear and be charged with actual or
hypothetical expenses to the same extent that the corresponding Ecolab Stock
Fund and other Investment Funds in the Savings Plan bear and are charged with
such expenses, as determined by the Administrator.


 


11

















 


ARTICLE
VII

MISCELLANEOUS


 


SECTION 7.1                         Effect of Amendment
and Termination.  Notwithstanding any
provision of the Plan (including the Administrative Document) to the contrary,
no amendment or termination of the Plan shall, without the consent of the
Executive (or, in the case of his death, his Death Beneficiary), adversely
affect the vested Account under the Plan of any Executive or Death Beneficiary
as such Account exists on the date of such amendment or termination; provided,
however, that this limitation shall not apply to any amendment or termination
that is deemed necessary or reasonable (as determined in the sole discretion of
the Committee) to comply with the requirements of the 409A Guidance.


 


SECTION 7.2                         Limitation on
Payments and Benefits. 
Notwithstanding any provision of this Plan to the contrary, if any
amount or benefit to be paid or provided under this Plan or any other plan or
agreement between the Executive and a Controlled Group member would be an “Excess
Parachute Payment,” within the meaning of Section 280G of the Code, or any
successor provision thereto, but for the application of this sentence, then the
payments and benefits to be paid or provided under this Plan shall be reduced
to the minimum extent necessary (but in no event to less than zero) so that no
portion of any such payment or benefit, as so reduced, constitutes an Excess
Parachute Payment; provided, however, that the foregoing reduction shall be
made only if and to the extent that such reduction would result in an increase
in the aggregate payment and benefits to be provided to the Executive,
determined on an after-tax basis (taking into account the excise tax imposed
pursuant to Section 4999 of the Code, or any successor provision thereto,
any tax imposed by any comparable provision of state law, and any applicable
federal, state and local income taxes). 
If requested by the Executive or the Company, the determination of
whether any reduction in such payments or benefits to be provided under this
Plan or otherwise is required pursuant to the preceding sentence shall be made
by the Company’s independent accountants, at the expense of the Company, and
the determination of the Company’s independent accountants shall be final and
binding on all persons.  The fact that
the Executive’s right to payments or benefits may be reduced by reason of the
limitations contained in this Section 7.2 shall not of itself limit or
otherwise affect any other rights of the Executive pursuant to this Plan.  The
Executive’s Mirror Savings Benefit will be reduced only to the extent that the
reduction in any cash payments due to the Executive, the Executive’s SERP
Benefits (if any) and the Executive’s Mirror Pension Plan Benefits is
insufficient to reduce or eliminate Excess Parachute Payment as described in
this Section.  The Executive’s Post-2004
Sub-Account (if any) shall be reduced if required by this section before any
Pre-2005 Sub-Account is reduced.


 


SECTION 7.3                         Establishment of a
Trust Fund.


 


(1)           In General.  The Plan is intended to be an unfunded,
non-qualified retirement plan.  However,
the Company may enter into a trust agreement with a trustee to establish a
trust fund (the “Trust Fund”) and to transfer assets thereto (or cause assets
to be transferred thereto), subject to the claims of the creditors of the
Employers, pursuant to which some or all of the Mirror Savings Plan Benefits
shall be paid.  Payments from the Trust
Fund shall discharge the Employers’ obligation to make payments under the Plan
to the extent that Trust Fund assets are used to satisfy such obligations.


 


(2)           Upon a Change in
Control.


 


(a)           Within thirty (30)
business days of the occurrence of a Change in Control, to the extent it has
not already done so, the Company shall be required to establish an irrevocable
Trust Fund for the purpose of paying Mirror Savings Plan Benefits.  Except as described in the following
sentence, all contributions to the Trust Fund shall be irrevocable and the
Company shall not have the right to direct the trustee to return to the
Employers, or divert to others, any of the assets of the Trust Fund until after
satisfaction of all liabilities to all of the Executives and their Death
Beneficiaries under the Plan.  Any assets
deposited in


 


12

















 


the Trust Fund
shall be subject to the claims of the creditors of the Employers and any excess
assets remaining in the Trust Fund after satisfaction of all liabilities shall
revert to the Company.


 


(b)           In addition to the
requirements described in paragraph (a) above, the Trust Fund which
becomes effective on the Change in Control shall be subject to the following
additional requirements:


 


(i)            the trustee of the
Trust Fund shall be a third party corporate or institutional trustee;


 


(ii)           the Trust Fund
shall satisfy the requirements of a grantor trust under the Code; and


 


(iii)          the Trust Fund
shall automatically terminate (A) in the event that it is determined by a
final decision of the United States Department of Labor (or, if an appeal is
taken therefrom, by a court of competent jurisdiction) that by reason of the
creation of, and a transfer of assets to, the Trust, the Trust is considered “funded”
for purposes of Title I of ERISA or (B) in the event that it is determined
by a final decision of the Internal Revenue Service (or, if an appeal is taken
therefrom, by a court of competent jurisdiction) that (I) a transfer of
assets to the Trust is considered a transfer of property for purposes of Code Section 83
or any successor provision thereto, or (II) pursuant to Code Section 451
or 409A or any successor provision thereto, amounts are includable as
compensation in the gross income of a Trust Fund beneficiary in a taxable year
that is prior to the taxable year or years in which such amounts would
otherwise be actually distributed or made available to such beneficiary by the
trustee.  Upon such termination of the Trust,
all of the assets in the Trust Fund attributable to the accrued Mirror Savings
Plan Benefits shall be immediately distributed to the Executives (but only to
the extent and in the manner permitted by the 409A Guidance), and the remaining
assets, if any, shall revert to the Company.


 


(c)           Within five (5) days
following establishment of the Trust Fund, the Company shall transfer (or cause
the Employers to transfer) to the trustee of such Trust Fund an amount equal to
all 100% of the Account balances of all of the Executives under the Plan.


 


(d)           Following the
funding of the Trust Fund pursuant to paragraph (a) above, the Company
shall cause to be deposited in the Trust Fund additional Executive Deferrals
and Matching Contributions, as such amounts are credited to the Accounts of the
Executives pursuant to Section 3.4 hereof.


 


(e)           Notwithstanding the
foregoing, an Employer shall not be required to make any contributions to the
Trust Fund if the Employer is Insolvent at the time such contribution is
required.


 


(f)            The Administrator
shall notify the trustee of the amount of Mirror Savings Plan Benefits to be
paid to the Executive (or his Death Beneficiary) from the Trust Fund and shall
assist the trustee in making distribution thereof in accordance with the terms
of the Plan.


 


(g)           Notwithstanding any
provision of the Plan or the Administrative Document to the contrary, the
provisions of this Section 7.3(2) hereof (i) may not be amended


 


13

















 


following a Change
in Control and (ii) prior to a Change in Control may only be amended (A) with
the written consent of each of the Executives or (B) if the effective date
of such Amendment is at least two years following the date the Executives were
given written notice of the adoption of such amendment; provided, however, that
this limitation shall not apply to any amendment that is deemed necessary or
reasonable (as determined in the sole discretion of the Committee) to comply
with the requirements of the 409A Guidance.


 


SECTION 7.4                         Delay of Payments
Subject to Code Section 162(m). 
The Company may delay the distribution of any amount otherwise required
to be distributed under the Plan if, and to the extent that, the Company
reasonably anticipates that the Company’s deduction with respect to such
distribution otherwise would be limited or eliminated by application of Section 162(m) of
the Code.  In such event, (1) if any
payment is delayed during any year on account of Code Section 162(m), then
all payments that could be delayed on account of Code Section 162(m) during
such year must also be delayed; (2) such delayed payments must be paid
either (a) in the first year in which the Company reasonably anticipates
the payment to be deductible, or (b) the period beginning on the date of
the Executive’s Separation From Service and ending on the later of the end of
the Executive’s year of separation or the fifteenth (15th) day of the third
month after such separation; and (3) if payment is delayed to the date of
Separation from Service with respect to a Executive who is a Specified
Employee, such payment shall commence after such Executive’s Separation from
Service on the date immediately following the six-month anniversary of the
Separation from Service, or if earlier, on the date of the Executive’s death.


 


IN WITNESS WHEREOF, Ecolab
Inc. has executed this Mirror Savings Plan and has caused its corporate seal to
be affixed this 19th  day of December, 2008.


 


ECOLAB INC.


 


	
   

  	
  By:

  	
  /s/ Steven
  L. Fritze

  
	
   

  	
   

  	
  Steven L.
  Fritze

  
	
   

  	
   

  	
  Chief
  Financial Officer

  



 


(Seal)

Attest:


 


 


	
  /s/ Lawrence
  T. Bell

  	
   

  
	
  Lawrence T.
  Bell

  	
   

  
	
  General
  Counsel and Secretary

  	
   

  



 


14

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  PREFACE

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Effective Date

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.2

  	
  Purpose of the Plan

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.3

  	
  Administrative Document

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.4

  	
  American Jobs Creation Act (AJCA)

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.5

  	
  Excess Plan

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  DEFINITIONS

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  “Account”

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 2.2

  	
  “Base Salary”

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 2.3

  	
  “Bonus.”

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 2.4

  	
  “Death Beneficiary.”

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 2.5

  	
  “Disability” or “Disabled.”

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 2.6

  	
  “Executive”

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 2.7

  	
  “Executive Deferrals”

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 2.8

  	
  “Hypothetical Investment Fund”

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 2.9

  	
  “Insolvent.”

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.10

  	
  “Matching Contributions”

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.11

  	
  “Minimum Benefit”

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.12

  	
  “Mirror Savings Benefit.”

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.13

  	
  “Plan”

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.14

  	
  “Savings Plan”

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.15

  	
  “Separation from Service” or to “Separate from
  Service”

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.16

  	
  “Specified Employee”

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.17

  	
  “Unforeseeable Emergency.”

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  MIRROR SAVINGS BENEFIT

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Amount of Executive Deferrals

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 3.2

  	
  Effect and Duration of Direction Pursuant to
  Section 3.1

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 3.3

  	
  Matching Contributions

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 3.4

  	
  Executives’ Accounts

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 3.5

  	
  Statement of Account

  	
  7

  
							



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  PAYMENT OF MIRROR SAVINGS BENEFITS

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Time of Payment

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 4.2

  	
  Form of Payment

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  VESTING

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Vesting

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  INVESTMENT OF ACCOUNTS

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Hypothetical Investment Funds

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  MISCELLANEOUS

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Effect of Amendment and Termination

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 7.2

  	
  Limitation on Payments and Benefits

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 7.3

  	
  Establishment of a Trust Fund

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 7.4

  	
  Delay of Payments Subject to Code
  Section 162(m)

  	
  14

  
						



 


ii