EXHIBIT (10)K


 


ECOLAB
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN


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


 


WHEREAS, the Company previously
established the Ecolab Supplemental Executive Retirement Plan (the “Plan”) to
provide additional retirement benefits in consideration of services performed
and to be performed by certain participants for the Company and certain related
corporations; 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, before the issuance by
the U.S. Treasury and the Internal Revenue Service (the “IRS”) of interpretive
guidance with respect to Code Section 409A, the Company amended the Plan
to temporarily freeze the accrual of SERP Benefits hereunder as of 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 (a) reinstate the accrual of SERP Benefits, effective
retroactively as of January 1, 2005 and (b) comply, with respect to
the Non-Grandfathered SERP Benefits, with the requirements of Code Section 409
and guidance issued thereunder;


 


NOW, THEREFORE, pursuant to Section 1.3
of the Plan and Section 5.1 of the Ecolab Inc. Administrative Document for
Non-Qualified Benefit Plans, the Company hereby amends and restates the Plan in
its entirety, effective as of January 1, 2005, 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.  The benefit, if any, payable with respect to
a former Executive who Retired or died 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 Sections 1.4 and 3.3(2)(c).  Notwithstanding any provision of the Plan to
the contrary, an Executive’s SERP Benefit (which was temporarily frozen from December 31,
2004 through December 31, 2008) shall be retroactively adjusted on January 1,
2009 to reflect the benefit that would have been accrued by the Executive under
the Plan, in accordance with Section 3.2,
during the period commencing on January 1, 2005 and ending on the earlier
of December 31, 2008 or the date on which the Executive terminated his
services with the Employers as an employee.


 


Section 1.2             Purpose of the Plan.  The purpose of this Plan is to provide
additional retirement benefits for certain management and highly compensated
employees of the Company 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 of
2004 (AJCA).


 


(1)           To the extent applicable, it is intended that the Plan
(including all Amendments thereto) comply with the provisions of Code Section 409A,
as enacted by the American Jobs Creation Act of 2004, P.L. 


 


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108-357 (the “AJCA”), so as to prevent the
inclusion in gross income of any amount of SERP Benefit accrued 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
Executives.  The Plan shall be
administered in a manner that will comply with Code Section 409A,
including 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 Code Section 409A.  The Administrator is authorized to adopt rules or
regulations deemed necessary or appropriate in connection with the 409A
Guidance to anticipate and/or comply with the requirements thereof (including
any transition or grandfather rules thereunder).


 


(3)           Notwithstanding any provision of the Plan, any
Grandfathered SERP Benefits (including any Pre-Retirement SERP Benefits
attributable thereto) 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, except as otherwise provided
herein.  Notwithstanding any provision of
the Plan to the contrary, neither the Company nor the Administrator guarantee
to any Executive or Death Beneficiary any specific tax consequences of
participation in or entitlement to or receipt of benefits from, the Plan, and
each Executive or the Executive’s Death Beneficiary shall be solely responsible
for payment of any taxes or penalties incurred in connection with his
participation in the Plan.


 


ARTICLE II

DEFINITIONS


 


Words and phrases used herein
with initial capital letters which are defined in the Pension 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             “Actuarial Equivalent” or “Actuarially
Equivalent.”  A benefit is the “Actuarial
Equivalent” of another benefit if, on the basis of Actuarial Factors, the
present values of such benefits are equal.


 


Section 2.2             “Actuarial Factors”  shall mean the actuarial assumptions set
forth in Exhibit A which is attached to and forms a part of this Plan.


 


Section 2.3             “Cash Balance Participant”  shall mean an Executive for whom a Retirement
Account is maintained under the Pension Plan.


 


Section 2.4             “Death Beneficiary.”


 


The
term “Death Beneficiary” shall mean the beneficiary designated under this Plan
and the Mirror Pension Plan.  The
designation of a Death Beneficiary 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 his 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.  Any Mirror Pension Benefits
remaining to be paid after the death of a Death Beneficiary (or a contingent
Death Beneficiary, to the extent designated by the Executive) shall be paid to
the Death Beneficiary’s estate.  If no
Death Beneficiary is designated by the Executive or all the designated Death
Beneficiaries predeceased the Executive, the Executive’s Death Beneficiary shall
be his spouse, and if there is no surviving spouse, then the Executive’s
estate.  The most recent Death
Beneficiary designation on file 


 


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with the Administrator will
be given effect, and in the event of conflicting forms files simultaneously
under this Plan and Mirror Pension Plan, the Death Beneficiary designation
under this Plan will govern.


 


Section 2.5             “Disability” or “Disabled”  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
position of employment or any substantially similar position of employment.


 


Section 2.6             “Executive”  shall mean an Employee who
is an elected corporate officer of an Employer and who is selected by the
Administrator to participate in the Plan or such other Employee who is selected
by the Chief Executive Officer of the Company to participate in the Plan.


 


Section 2.7             “Final Average Compensation”  shall mean the average of an Executive’s
Annual Compensation (as defined in the Administrative Document but as modified
by the next sentence) for the five (5) consecutive Plan Years of
employment with the Employers preceding the date on which the Executive
terminated his services with all Employers as an employee or death (including
the year in which the Executive so terminated his service or death) which
yields the highest average compensation. 
Notwithstanding the foregoing, for purposes of calculating the Final
Annual Compensation of a Disabled Executive, the rules applicable for
determining the Final Annual Compensation for persons who accrue benefits under
the Final Average Compensation formula specified in Section 4.6 of the
Pension Plan shall apply.  If an
Executive has been employed by the Employers for a period of less than five (5) Plan
Years preceding the date on which the Executive terminated his services with
all Employers or death, Final Average Compensation shall be calculated using
the Executive’s total period of employment with the Employers (calculated using
complete months of employment).


 


Section 2.8             “Grandfathered SERP Benefit”  shall mean the portion of an Executive’s SERP
Benefit that is deemed to have been deferred (within the meaning of the 409A
Guidance) under the Plan before January 1, 2005 and that is equal to the
present value as of December 31, 2004 of the vested SERP Benefit to which
the Executive would be entitled under the Plan, as in effect on October 3,
2004, if the Executive voluntarily terminated employment with the Controlled
Group without cause on December 31, 2004 and received a payment, on the
earliest possible date allowed under the Plan, of his SERP Benefit in the form
with the maximum value.  A Grandfathered
SERP Benefit shall be increased in subsequent years to equal the present value
of the benefit the Executive actually becomes entitled to receive, in the form
and at the time actually paid, determined under the terms of the Plan as in
effect on October 3, 2004, without regard to any services rendered or
Compensation increases applicable after December 31, 2004.


 


Section 2.9             “Mirror Pension Benefit”  shall mean one-twelfth (1/12th) of the annual
total benefit payable to an Executive under the Ecolab Mirror Pension Plan
calculated on a single life annuity basis commencing at age 65, as determined
by the Administrator.


 


Section 2.10           “Non-Grandfathered SERP Benefit”  shall mean any SERP Benefit that is not a
Grandfathered SERP Benefit.


 


Section 2.11           “Pension Benefit”  shall mean one-twelfth (1/12th) of the annual
total pensions paid or payable to the Executive under any pension plan (other
than the Ecolab Savings Plan, as such plan may be amended from time to time)
sponsored by a member of the Controlled Group which satisfies the qualification
requirements of the Code calculated on a single life annuity basis commencing
at age 65, as determined by the Administrator including (a) projected
payments from any former pension plan or former profit sharing plan which
reduces the pension payable under the Pension Plan, or (b) payments of
Retirement Account benefits under the Pension Plan, but determined as if for any Plan Year beginning on or after
January 1, 2005, the compensation used in computing such benefit were
equal to the annual compensation limitation under Code Section 401(a)(17)
as in effect for each relevant year for which annual compensation amount under
the pension plan benefit formula is determined.


 


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Section 2.12           “Plan”  shall mean this Ecolab Supplemental Executive
Retirement Plan, as it may be amended from time to time.


 


Section 2.13           “Primary Insurance Amount”  shall mean the monthly primary social
security benefit to which the Executive will be entitled at age 65, determined
in accordance with Exhibit B which is attached to and forms a part of this
Plan.


 


Section 2.14           “Retirement” or “Retired.”  The Retirement of an Executive shall occur
upon his termination of employment for any reason other than death or
Disability on or after (1) his attainment of age 55 and the completion of
at least 10 Years of Eligibility Service, or (2) his attainment of age
65.  For purposes of determining
Retirement under this Plan, the employment of a Disabled Executive shall be
deemed to have terminated “for reasons other than Disability” twelve months
after the Executive becomes Disabled, provided he does not resume active
employment with the Controlled Group before such date.


 


Section 2.15            “Savings Plan Benefit”  shall mean the benefit payable to the
Executive calculated as of July 1, 1994 in accordance with Exhibit C
which is attached to and forms a part of this Plan.


 


Section 2.16           “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).  With respect to the terms of the Plan
affecting Non-Grandfathered SERP Benefits, any reference to “termination of
employment” in the Plan shall mean Separation from Service as defined in this
Section.  Whether an Executive has
incurred a Separation from Service shall be determined in accordance with the
409A Guidance.


 


Section 2.17           “SERP Benefit”  shall mean the retirement benefit determined
under Article III.


 


Section 2.18           “SERP Pre-Retirement Benefit”  shall mean the pre-retirement benefit
determined under Article IV.


 


Section 2.19           “Specified Employee”  shall mean “Specified Employee” as defined in
the Administrative Document.


 


Section 2.20           “Year of Benefit Service.”


 


(1)           An Executive shall be credited with one Year of Benefit
Service for each year of “Credited Service” (or such other defined term which
is used to determine service for benefit accrual purposes) as defined by and
credited to the Executive under the Pension Plan.  Notwithstanding the foregoing, for purposes
of calculating Years of Benefit Service for a Cash Balance Participant, the rules applicable
for determining Credited Service under the Pension Plan for persons who accrue
benefits under the Final Average Compensation formula specified in Article 4
of the Pension Plan shall apply.


 


(2)           A Disabled Executive shall continue to accrue Years of
Benefit Service during the period of twelve months following the date on which
he becomes Disabled for purposes of determining the amount of his SERP Benefit
hereunder.


 


(3)           In no event shall an Executive’s Years of Benefit Service
under the Plan exceed thirty (30) years.


 


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Section 2.21           “Year of Eligibility Service.”


 


(1)           An Executive shall be credited with
one Year of Eligibility Service for each year of “Continuous Service” (or such
other defined term which is used to determine service for vesting purposes) as
defined by and credited to the Executive under the Pension Plan.


 


(2)           A Disabled Executive shall continue to accrue Years of
Eligibility Service during the first twelve months of his Disability for
purposes of determining his vested interest in of his SERP Benefit hereunder.


 


Section 2.22           “Year of Past Service Credit”  means the excess, if any, of the thirty (30)
Years of Benefit Service required to earn the maximum SERP Benefit hereunder
over the number of Years of Benefit Service it would be possible for the
Executive to accumulate by his attainment of age 65 or, if later, the date of
his Retirement.


 


ARTICLE III

SERP BENEFITS


 


Section 3.1             Participation.


 


(1)           Commencement of Participation.  Any Employee who as of the Effective Date is
a participant in the Plan, shall continue to participate, subject to Subsection
(2).  Any other Employee shall become a
participant in the Plan as of the first date on or after the Effective Date on
which he is an Executive.


 


(2)           Termination of Participation.  An Executive shall cease to be a participant
in the Plan on the earliest to occur of (a) the date the Executive ceases
to be employed by the Controlled Group or dies before becoming vested in his
SERP Benefit, or (b) the date on which the Executive’s SERP Benefit is
distributed from the Plan.


 


Section 3.2             Amount of SERP Benefits.  Each vested Executive shall, upon termination
of employment (Separation from Service with respect to the Non-Grandfathered
SERP Benefit), be entitled to a SERP Benefit which shall be determined as
hereinafter provided.


 


(1)           The SERP Benefit shall be a monthly retirement benefit
payable in the form of a fifteen-year (15) certain benefit commencing upon the
Executive’s attainment of age 65 equal to the sum of (a) and (b), where:


 


(a) =                      one-twelfth (1/12th) of the Executive’s Final Average
Compensation, multiplied by two percent (2%) for each of the Executive’s Years
of Benefit Service (up to a maximum of thirty (30)), reduced by (i) the
Pension Benefit, (ii) the Mirror Pension Benefit, (iii) fifty percent
(50%) of the Primary Insurance Amount, and (iv) the Savings Plan Benefit;
and


 


(b) =                     the difference between (i) one-twelfth
(1/12th) of the
Executive’s Final Average Compensation, and (ii) one-twelfth (1/12th) of the Executive’s Annual
Compensation for the Plan Year in which the Executive commenced employment with
the Controlled Group, such difference multiplied by one percent (1%) for each
of the Executive’s Years of Past Service Credit (if any).


 


(2)           For purposes of Subsection (1)(b)(ii), if the Executive
was not an Employee for the entire Plan Year, his Annual Compensation for such
Plan Year shall be annualized based on the number of days employed by the
Controlled Group out of a Plan Year of 365 days.


 


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(3)           Notwithstanding anything in this Section 3.2 to the
contrary, in no event will any Executive’s SERP Benefit be less than such
Executive’s Grandfathered SERP Benefit.


 


Section 3.3             Time of Payment.


 


(1)           Grandfathered SERP Benefit.  The provisions of this Section 3.3(1) shall
apply solely with respect to the portion of an Executive’s SERP Benefit that is
a Grandfathered SERP Benefit.  Payment of
any portion of an Executive’s SERP Benefit that is a Non-Grandfathered SERP
Benefit shall be made in accordance with Section 3.3(2).


 


(a)           In General. 
An Executive’s SERP Benefit shall be paid or commence to be paid within
90 days after the later of the date the Executive attains age 65 or the date of
the Executive’s Retirement. 
Notwithstanding the foregoing, if payment at such time is prevented due
to reasons outside of the Administrator’s control, the SERP Benefits shall
commence to be paid as soon as practicable after the end of such 90-day period,
and the first payment hereunder shall include any SERP Benefits not paid as a
result of the delay in payment.


 


(b)           Early Commencement. 
Notwithstanding the provisions of Subsection (1)(a) of this
Section, upon the written request of the Executive (on a form prescribed by the
Administrator) which is 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 Retirement, the Administrator may, in its complete and
sole discretion, commence payment of the SERP Benefits to the Executive at a
specified date which is after the Executive’s Retirement but prior to the
Executive’s attainment of age 65; provided, however, that the amount of the
SERP Benefit shall be reduced by one/two hundred and eightieth (1/280th) for each month that the
date of the commencement of the SERP Benefits precedes the date on which the
Executive will attain age 62.


 


(2)           Non-Grandfathered SERP Benefits.  The provisions of this Section 3.3(2) shall
apply solely with respect to the portion of an Executive’s vested SERP Benefit
that is a Non-Grandfathered SERP Benefit. 
Payment of any portion of an Executive’s SERP Benefit that is a
Grandfathered SERP Benefit shall be made in accordance with Section 3.3(1).


 


(a)           In General. 
Except as provided in subsection (b), an Executive’s vested
Non-Grandfathered SERP Benefit shall be paid or commence to be paid on the
first day of the third month following the month in which occurs the later of
the date on which the Executive (i) attains age 55 or (ii) Separates
from Service, subject to Section 3.3(2)(d), Section 3.4(2)(d) and
3.4(2)(c) (as applicable).  The
amount of any such SERP Benefit paid before the Executive’s attainment of age
65 shall be reduced by one/two hundred and eightieth (1/280th) for each month
that the date of the commencement of the SERP Benefits precedes the date on
which the Executive will attain age 62.


 


(b)           Cash Balance Participant.  A Cash Balance Participant’s
Non-Grandfathered SERP Benefit shall be paid or commence to be paid on the
first day of the third month following the month in which the Executive
Separates from Service, subject to Section 3.3(2)(d) and Section 3.4(2)(d) (as
applicable).


 


(c)           Certain Transition Distributions to Terminated
Executives.


 


(i)            An Executive who
Separated from Service after December 31, 2004 and before December 31,
2008 and has commenced payments of his Grandfathered SERP Benefits at any time
before December 31, 2008, shall receive his Non-Grandfathered SERP Benefit
(if any), for which the Executive’s SERP Benefit is retroactively adjusted
pursuant to Section 1.1 on January 1, 2009, in the same form and at
the same time as the Executive’s Grandfathered benefit, subject to Section 3.3(2)(d).  Notwithstanding the foregoing, a Cash Balance



 


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Participant’s Non-Grandfathered SERP Benefit shall be paid on March 1,
2009, subject to Section 3.3(2)(d).


 


(ii)           An Executive who Separated
from Service after December 31, 2004 and before December 31, 2008 and
has not before December 31, 2008 commenced payments of his
Non-Grandfathered SERP Benefit, shall receive his Non-Grandfathered SERP
Benefit, for which the Executive’s SERP Benefit is retroactively adjusted
pursuant to Section 1.2 on January 1, 2009, in a single lump sum on March 1,
2009.


 


(d)           Payment Delay for Specified Employees.  Notwithstanding any provision of the Plan,
payments to a Specified Employee shall be made or commence on the latest of (i) the
date specified in Section 3.3(2)(a), (b) or (c), (ii) the date
specified in Section 3.4(2)(d)(i), if the Executive made an election
pursuant to such section, or (iii) the date that is six (6) months
after the Specified Employee’s Separation From Service; provided, however, that
if the Executive dies before the date specified in (i), (ii) or (iii), the
Executive’s benefit shall be paid or commence on the date specified in Section 4.2.  The first payment made to the Specified Employee
following the 6-month delay shall include any SERP Benefit payments that were
not made as a result of the delay in payment pursuant to this paragraph (d),
with interest at an annual rate of five percent (5%) compounded annually.  Notwithstanding the foregoing, this paragraph
(d) shall not apply to any Executive if on the date of his Separation from
Service, the stock of the Company and Controlled Group members is not publicly
traded on an established securities market (within the meaning of the 409A Guidance).


 


Section 3.4             Form of Payment


 


(1)           Grandfathered SERP Benefit.  The provisions of this Section 3.4(1) shall
apply solely with respect to the portion of an Executive’s SERP Benefit that is
a Grandfathered SERP Benefit.


 


(a)           In General. 
An Executive who does not want his SERP Benefit to be paid in the form
of the 15-year certain benefit described in Section 3.2 may elect to
receive his SERP Benefit in any of the optional forms of benefit payment which
are permitted under the Pension Plan. 
Any such optional form of benefit shall be the Actuarial Equivalent of
the SERP Benefit payable to the Executive in the form specified in Section 3.2.


 


(b)           Lump Sum Payment.


 


(i)            Notwithstanding the
provisions of Subsection (1)(a) of this Section, an Executive may elect to
receive the SERP Benefit in the form of a single lump sum payment.


 


(ii)           The lump sum
payment described in paragraph (b)(i) of this Subsection shall be
calculated by converting the Executive’s SERP Benefit (calculated in accordance
with the provisions of Section 3.2) at the time of the commencement of
such Benefit into a lump sum amount of equivalent actuarial value when computed
using the Actuarial Factors specified in Exhibit A for this purpose, and
then applying the ten percent (10%) reduction, if applicable, provided for in
Subsection (c) of this Section.


 


(iii)          Notwithstanding any
provision of the Plan to the contrary, in the event the equivalent actuarial
value of the Executive’s SERP Benefit, when computed using the Actuarial
Factors specified in Exhibit A for this purpose, does not exceed $25,000  , such Benefit
shall be paid in the form of a single lump sum payment.


 


(c)           Form/Timing of Election.  Any election of an optional form of benefit
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 Retirement.  Any such election may be changed at any time
and from time to time without the consent of any existing Death Beneficiary or
any other person (except as 


 


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described in Section 2.2), 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
Retirement shall not be valid, and in such case, payment shall be made in
accordance with the latest valid election of the Executive.  Notwithstanding the foregoing, an Executive
shall be permitted to make an election to receive his SERP Benefit in the form
of a lump sum payment within the one (1) year period prior to his
voluntary termination if (and only if) the amount of the SERP Benefit payable
to the Executive is reduced by ten percent (10%).


 


(2)           Non-Grandfathered SERP Benefits.  The provisions of this Section 3.4(2) shall
apply solely with respect to the portion of an Executive’s SERP Benefit that is
a Non-Grandfathered SERP Benefit.


 


(a)           Normal Payment Form.  Unless an Executive makes an election
pursuant to Section 3.4(2)(b) or (e), the Executive’s
Non-Grandfathered SERP Benefit will be paid to the Executive in the form of
annual installment payments payable over a period of ten (10) years, the
amount of which is Actuarially Equivalent to the SERP Benefit calculated under Section 3.2.


 


(b)           Optional Forms of Benefit.  In lieu of the normal form of payment, an
Executive may make or change an election to receive his Non-Grandfathered SERP
Benefit in one of the following Actuarially Equivalent optional forms of
benefit:


 


(i)            A single life
annuity payable monthly to the Executive during the Executive’s life and ending
on the date of the Executive’s death.


 


(ii)           A reduced joint and
survivor annuity payable monthly to the Executive during the Executive’s life,
and after the Executive’s death, payable monthly to the Executive’s spouse who
survives the Executive in the amount equal to 50%, 75% or 100% (as the
Executive elects) of such reduced lifetime monthly amount.


 


(iii)          A reduced life and
period certain annuity payable monthly to the Executive during the Executive’s
life, with payment thereof guaranteed to be made for a period of five (5) or
ten (10) years, as elected by the Executive, and, in the event of the
Executive’s death before the end of such 5- or 10- year period, payable in the
same reduced amount for the remainder of such 5- or 10-year period, to the
Death Beneficiary designated by the Executive.


 


(iv)          Annual installment
payments payable to the Executive over a period of five (5) or ten (10) years,
as elected by the Executive.


 


(v)           A single lump sum
payment.


 


(c)           Mandatory Lump Sum. 
Notwithstanding any provision of the Plan to the contrary, in the event
that the present value of the Executive’s Non-Grandfathered SERP Benefit does
not exceed $25,000 at the time of distribution, such Non-Grandfathered SERP
Benefit shall be paid in the form of a single lump sum payment on the date of
the Executive’s Separation from Service, subject to Section 3.3(2)(d).


 


(d)           Election of Optional Form of Payment.  An election of an optional form of payment
must be in writing (on a form provided by the Administrator) and must satisfy
the following requirements:


 


(i)            Except as provided
in Section 3.4(2)(e), if an Executive wishes to elect an optional form of
payment under Section 3.4(2)(b) above (other than the normal form of
payment) or wishes to change his election made under Section 3.4(2)(e) (other
than an election change described in Section 3.4(2)(d)(ii)), the election
must be filed with the Administrator 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 as of the date of Separation from
Service) shall be given effect and become irrevocable on the date of the 


 


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Executive’s
Separation from Service.  No election
filed less than twelve (12) months before the Executive’s Separation from
Service shall have any force or effect, except as provided in Section 3.4(2)(d)(ii).  The payment pursuant to an election made
under this Section 3.4(2)(d)(i) shall be made or commence on the
first day of the month coincident with or immediately following the fifth
anniversary of the original commencement date specified in Section 3.3(2)(a) or
(b) (as applicable).


 


(ii)           An Executive who
elected, pursuant to Section 3.4(2)(d)(i) or 3.4(2)(e), a life
annuity form of payment (within the meaning of the 409A Guidance) described in Section 3.4(2)(b)(i),
(ii) or (iii), may, at any time before the date of Separation from
Service, change that annuity form of payment to an Actuarially Equivalent life
annuity form of payment, provided the commencement date for such annuity, as
specified in, respectively, Section 3.4(2)(d)(i) or Section 3.4(2)(e),
remains unchanged.


 


(e)           Transition Elections.  Notwithstanding any provision of the Plan,
any Executive who is an active employee of the Company  or a member of the Controlled Group during
the election period designated by the Administrator, ending no later than December 31,
2008, may make an election to receive his Non-Grandfathered SERP Benefit in one
of the optional forms specified in Section 3.4(2)(b), commencing on the
date specified in Section 3.3(2)(a) or (b) (as applicable);
provided, however, that such election shall not apply if the Executive
Separates from Service on or before December 31, 2008 and is subject to
the provision of Section 3.3(2)(c). 
The transition election must be made in writing, on a form provided by
the Administrator and filed with the Administrator within the designated
transition election period.  The
transition election made pursuant to this paragraph (e) may not cause any
amount to be paid in 2008 if not otherwise payable and may not delay payment of
any amount that is otherwise payable in 2008.


 


(f)            Coordination of Payment Elections with Mirror Pension
Plan.  If an Executive is also a
participant in the Mirror Pension Plan, the Executive’s Non-Grandfathered
Mirror Pension Benefit and the Non-Grandfathered SERP Benefit will be paid in
the same form and at the same time.  If
an Executive makes an election of an optional payment form pursuant to Section 3.4(2)(b) of
the Plan or Section 3.3(2)(b) of the Mirror Pension Plan, the most
recent election filed with the Administrator under either this Plan or the
Mirror Pension Plan at least twelve (12) months before the Separation from
Service (or, if applicable, at a date specified in paragraph (d)(ii) of
this Subsection) that remains on file with the Administrator on the date of
Separation from Service will govern the form and time of payment under the
Plan.  In the event of conflicting
election forms filed simultaneously under this Plan and the Mirror Pension
Plan, the election filed under this Plan shall govern.


 


Section 3.5             Death After Commencement of
Non-Grandfathered SERP Benefits.  If
an Executive dies after commencing payment of his Non-Grandfathered SERP
Benefit under the Plan but before his entire Non-Grandfathered SERP Benefit is
distributed, payments to the Executive’s Death Beneficiary (if any) will be
made (a) in accordance with the elected optional form of payment described
in Section 3.4(2)(b)(ii) or (iii) (if elected), or (b) ninety
(90) days after the Executive’s death in the form of a single lump sum,
calculated using the Actuarial Factors in effect on the date of distribution,
if the Executive elected one of the optional forms of payment described in Section 3.4(b)(iv).


 


ARTICLE IV

SERP PRE-RETIREMENT BENEFITS


 


Section 4.1             Eligibility.  The Death Beneficiary of an Executive who
dies after becoming vested in his SERP Benefits (including the Death
Beneficiary of an Executive who dies while he is Disabled) but prior to
commencing to receive SERP Benefits hereunder shall be entitled to receive the
SERP Pre-Retirement Benefits described in Section 4.2 in lieu of any other
benefits described in the Plan.


 


9

















 


Section 4.2             Amount, Form and Timing of
SERP Pre-Retirement Benefits.


 


(1)           Grandfathered SERP Benefit.  A Death Beneficiary who is eligible for a
SERP Pre-Retirement Benefit hereunder shall receive the portion of such SERP
Pre-Retirement Benefit that is based on the Executive’s Grandfathered SERP
Benefit in accordance with this Subsection (1). 
The SERP Pre-Retirement Benefit that is based on the Executive’s
Grandfathered SERP Benefit shall be calculated in accordance with, and payable
at the same time and (except as provided in Section 3.4(1)(b)) in the same
manner as, the pre-retirement death benefits and (if applicable) the optional
death benefits described in the Pension Plan, as determined by the Administrator.  Notwithstanding the foregoing, the Death
Beneficiary of a Cash Balance Participant who is eligible for a SERP
Pre-Retirement Benefit, shall receive such Benefit in the form of a lump sum
payment.


 


(2)           Non-Grandfathered SERP Benefit.  A Death Beneficiary who is eligible for a
SERP Pre-Retirement Benefit hereunder shall receive the portion of such SERP
Pre-Retirement Benefit that is based on the Executive’s vested
Non-Grandfathered SERP Benefit as follows.


 


(a)           If an Executive (i) is not married on the date of his
death, (ii) has been married for less than one year prior to his death and
designates a Death Beneficiary other than his spouse, or (iii) has been
married for at least one year prior to his death and the Executive’s spouse
consents to the Executive’s designation of a Death Beneficiary other than the
spouse, the Executive’s Death Beneficiary shall receive his benefit in an
amount Actuarially Equivalent to the survivor benefit determined as if the
Executive had Separated from Service on the earlier of the date of his actual
Separation from Service or the date of his death, elected to receive his
Non-Grandfathered SERP Benefit in the form of a monthly life annuity with (A) a
five (5) year certain survivor benefit if the Executive had Separated from
Service before attaining age 55, or (B) a ten (10) year certain
survivor benefit, if the Executive had attained age 55 while an Employee, had
survived to age 55 and had died immediately following his payment commencement
date.  The Non-Grandfathered SERP
Pre-Retirement Benefit shall be paid in the form of an Actuarially Equivalent
single lump sum payment on the first day of the third month after the later of
the date on which the Executive would have attained age 55 or the date of the
Executive’s death.


 


(b)           If an Executive who dies after becoming vested in his SERP
Benefit is married on the date of his death and paragraph (a) does not
apply to him, then the Executive’s surviving spouse shall receive the SERP
Pre-Retirement Benefit as follows:


 


(i)            If the
Executive had Separated from Service before attaining age 55, the Executive’s
spouse shall receive a reduced annuity payable monthly to the Executive’s
spouse during his life, commencing on the first day of the third month
following the later of the date on which the Executive would have attained age
55 or the date of the Executive’s death and ending on the date of the Executive’s
spouse’s death, calculated as if the Executive had Separated from Service on
the earlier of the date of the Executive’s death or actual Separation from
Service, elected a joint and 50% survivor annuity form of payment described in Section 3.4(2)(b)(ii),
survived to age 55 and died on the date following the payment commencement date.


 


(ii)           If the Executive
had attained age 55 while an Employee, the Executive’s spouse shall receive a
reduced annuity payable monthly to the Executive’s spouse during his life,
commencing on the first day of the of the third month after the date of the
Executive’s death, calculated as if the Executive had died immediately after
commencing payments in the form of an immediate joint and 100% survivor annuity
form of payment described in Section 3.4(2)(b)(ii).


 


(c)           Notwithstanding the foregoing, (i) if the SERP
Pre-Retirement Benefit under this Subsection (2) is payable to a
Cash-Balance Participant, such benefit will be distributed to the Executive’s
Death Beneficiary in the form of an Actuarially Equivalent single lump sum 90
days after the Executive’s death, and (ii) if the present value of the
SERP Pre-Retirement Benefit under this Subsection (2) payable to any 


 


10

















 


Executive not described in (i) does not
exceed $25,000, such benefit will be distributed to the Executive’s Death
Beneficiary in the form of an Actuarially Equivalent single lump sum on the
first day of the third month following the later of the date on which the
Executive would have attained age 55 of the date of the Executive’s death.


 


ARTICLE V

VESTING


 


Section 5.1             Vesting.


 


(1)           In General.  Except as provided in Subsections (2) and
(3) of this Section, an Executive shall become vested in the SERP Benefits
upon (a) his attainment of age 65 while in the employ of the Controlled
Group, (b) his attainment of age 55 while in the employ of the Controlled
Group and his completion of 10 Years of Eligibility Service, or (c) his
attainment of age 55 during the first twelve-month period of his Disability and
his completion of 10 Years of Eligibility Service.


 


(2)           Forfeiture Provision.


 


(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 SERP Benefits or SERP Pre-Retirement 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 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.


 


(b)           Notwithstanding the foregoing, an Executive shall not
forfeit any portion of his SERP Benefits or SERP Pre-Retirement 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.


 


(3)           Acceleration of Vesting.  Notwithstanding the provisions of Subsection (1) hereof,
the SERP Benefits of the Executives (a) who are employed by the Controlled
Group on the date of a Change in Control or (b) whose employment with the
Company was terminated prior to a Change in Control but the Executive
reasonably demonstrates that the termination occurred at the request of a third
party who has taken steps reasonably calculated to effect the Change in
Control, shall become immediately one hundred percent (100%) vested upon the
occurrence of such Change in Control.


 


ARTICLE VI

MISCELLANEOUS


 


Section 6.1             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 SERP Benefit or vested SERP Pre-Retirement Benefit under the
Plan of any Executive or Death Beneficiary as such Benefit exists on the date
of such amendment or termination; provided, however, that this limitation shall


 


11
















 


not apply to the extent deemed necessary by
the Company to comply with the requirements of the 409A Guidance.


 


Section 6.2             Protective Provisions.  Notwithstanding any provision of the Plan to
the contrary, if an Executive commits suicide during the two-year period
beginning on the date of his commencement of participation in the Plan or makes
any material misstatement or nondisclosure of medical history, then, in the
Administrator’s sole and absolute discretion, no SERP Benefits or SERP
Pre-Retirement Benefits shall be payable hereunder or such Benefits may be paid
in a reduced amount (as determined by the Administrator).


 


Section 6.3             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 Code Section 280G, 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 Code Section 4999,
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 6.3 shall
not of itself limit or otherwise affect any other rights of the Executive
pursuant to this Plan.  The Executive’s
benefit will be reduced only to the extent that the reduction in any cash
payments due to the Executive is insufficient to reduce or eliminate Excess
Parachute Payment as described in this Section. 
The Executive’s Non-Grandfathered SERP Benefit (if any) shall be reduced
if required by this section before any Grandfathered SERP Benefit is reduced.


 


Section 6.4             Establishment of 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 SERP Benefits and SERP Pre-Retirement  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
SERP Benefits and SERP Pre-Retirement 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 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:


 


12

















 


(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 a termination of the
Trust, all of the assets in the Trust Fund attributable to the accrued SERP
Benefits and SERP Pre-Retirement Benefits shall be immediately distributed to
the Executives and the remaining assets, if any, shall revert to the Company;
provided, however, that distributions to the Executives will be made only to
the extent and in the manner permitted by the 409A Guidance.


 


(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 the equivalent actuarial
present value of the SERP Benefits and SERP Pre-Retirement Benefits which have
been accrued as of the date of the Change in Control on behalf of all of the
Executives under the Plan (using the Actuarial Factors specified in Exhibit A
for this purpose).


 


(d)           In January of each year following a funding of the
Trust Fund pursuant to paragraph (c) above, the Company shall cause to be
deposited in the Trust Fund such additional amount (if any) by which the
aggregate equivalent actuarial present value (determined using the Actuarial
Factors specified in Exhibit A) of the sum of the SERP Benefits and SERP
Pre-Retirement Benefits for all Executives under the Plan as of December 31
of the preceding year exceeds the fair market value of the assets of the Trust
Fund as of such date.


 


(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 SERP Pension Benefits and SERP Pre-Retirement Benefits to be paid to or on
behalf of the Executive 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 6.4(2) hereof
(i) may not be amended 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 (2) 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 6.5             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 


 


13

















 


be limited or eliminated by application of
Code Section 162(m).  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 (i) in the first year in which the Company reasonably anticipates
the payment to be deductible, or (ii) 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 an 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
Supplemental Executive Retirement 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

















 


EXHIBIT A


ACTUARIAL ASSUMPTIONS  

FOR SERP BENEFITS AND

SERP PRE-RETIREMENT BENEFITS


 


 


	
  1.

  	
  Interest Rate:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  A. For Lump Sum

  	
   

  	
  The interest rate will be 125% of the 10-year Treasury rate for the
  month of October preceding the Plan Year (i.e., January 1)
  (1) in which the retirement or other termination of employment is
  effective if the SERP Benefit is to commence immediately following such
  retirement or termination of employment or (2) in which the distribution
  becomes payable if the payment is to be deferred. 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B. General Actuarial Equivalence

  	
   

  	
  7.5% except as provided in item 4 below.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Mortality - General Actuarial Equivalence

  	
   

  	
  1971 Group Annuity Table.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Annuity Values Weighted - General Actuarial Equivalence

  	
   

  	
  75% male, 25% female.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Early Commencement:

  	
   

  	
  If payment is in the form of a single lump sum, the lump sum amount
  shall be based on the lump sum interest rate defined in item 1 above, and the
  “early retirement benefit” immediate annuity amount as determined under
  Section 3.3(1)(b) or 3.3(2)(a).

  	
   

  



 

















 


EXHIBIT B


PRIMARY SOCIAL SECURITY BENEFITS


 


(A)          For purposes of the Plan, an Executive’s
monthly primary social security benefit is the estimated social security
benefit amount, under the Old Age and Survivors Insurance Benefit Act of the
United States in effect on the first day of the calendar year during which the
Executive terminates employment, which the Executive is receiving, or would be
entitled to receive, commencing at his attainment of age 65, whether or not he
applies for, or actually receives, such benefits.


 


(B)           The amounts determined under section (A) hereof
shall be based upon the following assumptions:


 


(1)           except as otherwise provided in
Subsection (5) hereof, the Executive is assumed to have participated in
social security starting at the later of age 22 or January 1, 1951;


 


(2)           except
as otherwise provided in Subsection (5) hereof, the Executive’s
compensation on which his social security benefit is based shall be assumed to
be that resulting from applying a decrease for years prior to the mid-year of
the years on which the Executive’s Final Average Compensation is based, and an
increase for years following such mid-year, at the same rates as the national
average total wages for adjusting earnings as used in computing social security
benefits, as published by the Social Security Administration for each such year,
with the rate for the last published year being used for any years subsequent
to such last published year;


 


(3)           except
as otherwise provided in Subsection (5) hereof, the taxable wage base, the
factors for indexing wages, and the table or formula used to determine the
estimated monthly primary social security benefit amount will be assumed to
remain constant following the Executive’s termination of employment;


 


(4)           except
as otherwise provided in Subsection (5) hereof, for an Executive whose
employment terminates prior to his attainment of age 65, it shall be assumed
that he earned no compensation from the date of termination of his employment
to his attainment of age 65;


 


(5)           for
an Executive whose benefit is based, in whole or part, upon the continuing accrual
of Years of Benefit Service during the period of his Disability, it shall be
assumed that, during the period for which he accrues Years of Benefit Service
under those sections, he continued to earn Annual Compensation at the same rate
as during the Plan Year in which he became Disabled; provided, however, that,
in the event the Executive is receiving, or is entitled to receive, a primary
social security disability benefit, the amount of such benefit shall be deemed
to be his “primary social security benefit” for purposes of the Plan, in lieu
of the amount otherwise determined under this Exhibit B;


 


(C)           an
Executive who, for any reason, is not a participant in the United States social
security benefit program shall be deemed to participate fully in such program
for purposes of determining the Executive’s primary social security benefit.


 


(D)          An Executive’s primary social security
benefit may be determined by reference to a schedule based upon pay brackets,
provided such schedule is prepared in accordance with the foregoing provisions
of this Exhibit B.


 

















 


EXHIBIT C

SAVINGS PLAN BENEFIT


 


The Savings Plan Benefit shall
be one-twelfth (1/12th) of the annual benefit, determined by the
Administrator, that would be provided by Employer Contributions to the Ecolab
Savings Plan (formerly the EL Thrift Plan) (hereafter the “Savings Plan”) made
on or prior to July 1, 1994, if the Executive’s benefit under the Savings
Plan as of July 1, 1994 were paid commencing at the Executive’s attainment
of age 65 on a straight life annuity basis (based on an interest rate of 4.25%
and the 1984 Unisex Pension Mortality Table shifted forward one year) and
assuming (1) that the Employers contributed to the Savings Plan on the
Executive’s behalf from (a) the later of January 1, 1977 or the date
of the Executive’s first eligibility for participation in the Savings Plan
until (b) the earlier of the Executive’s Retirement or July 1, 1994,
an annual amount equal to three percent (3%) of the Executive’s actual Annual
Compensation; provided, however, that the three percent (3%) shall be reduced
by the amount, if any, which could not be contributed in each year by reason of
the maximum contributions limitations of Code Section 415 and the maximum
compensation limitations of Code Section 401(a)(17), and (2) that
such Employer contributions to the Savings Plan on behalf of the Executive
accumulated earnings at an annual rate of eight percent (8%) for all periods
prior to January 1, 1991, and for each calendar year thereafter until the
earlier of the Executive’s attainment of age 65 or December 31, 1993, at
an interest rate established annually by the Administrator based on the PBGC’s
immediate annuity rate as of the December 31 of the immediately preceding
year, and for the period from January 1, 1994 until the attainment of age
65, at an interest rate of 4.25% (the December 1993 PBGC immediate rate).


 

















 


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 of 2004 (AJCA)

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  DEFINITIONS

  	
  2

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 2.1

  	
  “Actuarial Equivalent” or “Actuarially Equivalent.”

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.2

  	
  “Actuarial Factors”

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.3

  	
  “Cash Balance Participant”

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.4

  	
  “Death Beneficiary.”

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.5

  	
  “Disability” or “Disabled”

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.6

  	
  “Executive”

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.7

  	
  “Final Average Compensation”

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.8

  	
  “Grandfathered SERP Benefit”

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.9

  	
  “Mirror Pension Benefit”

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.10

  	
  “Non-Grandfathered SERP Benefit”

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.11

  	
  “Pension Benefit”

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.12

  	
  “Plan”

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.13

  	
  “Primary Insurance Amount”

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.14

  	
  “Retirement” or “Retired.”

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.15

  	
  “Savings Plan Benefit”

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.16

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

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.17

  	
  “SERP Benefit”

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.18

  	
  “SERP Pre-Retirement Benefit”

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.19

  	
  “Specified Employee”

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.20

  	
  “Year of Benefit Service.”

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.21

  	
  “Year of Eligibility Service.”

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.22

  	
  “Year of Past Service Credit”

  	
  5

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  SERP BENEFITS

  	
  5

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 3.1

  	
  Participation

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.2

  	
  Amount of SERP Benefits

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.3

  	
  Time of Payment

  	
  6

  
									



 

















 


 


 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 3.4

  	
  Form of Payment

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.5

  	
  Death After Commencement of Non-Grandfathered SERP
  Benefits

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  SERP PRE-RETIREMENT BENEFITS

  	
  9

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 4.1

  	
  Eligibility

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.2

  	
  Amount, Form and Timing of SERP Pre-Retirement
  Benefits

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  VESTING

  	
  11

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 5.1

  	
  Vesting

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  MISCELLANEOUS

  	
  11

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 6.1

  	
  Effect of Amendment and Termination

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.2

  	
  Protective Provisions

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.3

  	
  Limitation on Payments and Benefits

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.4

  	
  Establishment of Trust Fund

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.5

  	
  Delay of Payments Subject to Code
  Section 162(m)

  	
  13