EXHIBIT (10)P


 


ECOLAB
INC.


 


CHANGE IN CONTROL SEVERANCE
COMPENSATION POLICY


 


ARTICLE
I - INTRODUCTION


 


Section 1.1                                      Background.  The Board of Directors (the “Board”) of
Ecolab Inc. (the “Company”) has considered the effect a Change in Control of
the Company may have on certain Executives of the Company.  The Board recognizes and understands the
concern such Executives have for their careers and their personal financial
security in the event of a Change in Control of the Company.  As a result, absent appropriate assurances,
such Executives are likely to seek more secure career opportunities elsewhere
if a Change in Control of the Company is perceived to be a real possibility, or
if a Change in Control transaction is proposed or threatened.


 


Section 1.2                                      Purpose.  This Policy is designed to encourage
Executives to remain employees of the Company and its Subsidiaries
notwithstanding the time pressure and financial uncertainty which may result
from a proposed or threatened Change in Control transaction and notwithstanding
the outcome of any such proposed transaction, to enable Executives to make
career decisions and to assure fair treatment of such Executives in the event
of a Change in Control of the Company.


 


ARTICLE
II - ESTABLISHMENT OF THE POLICY


 


Section 2.1                                      Establishment
of Policy.  As of February 22,
2002, the Company established this severance compensation Policy known as the “Change
in Control Severance Compensation Policy” (this “policy”).  The Company is hereby amending and restating
the Policy effective as of the Effective Date.


 


Section 2.2                                      Applicability
of Policy.  The benefits provided by
this Policy shall be available to all Executives who, at or after the Effective
Date, meet the eligibility requirements of Article IV hereof.


 


Section 2.3                                      Contractual
Right to Benefits.  Subject to the
provisions of Article VIII hereof, this Policy establishes and vests in
each Participant a contractual right to the benefits to which he or she is
entitled hereunder, enforceable by the Participant against the Company on the
terms and subject to the conditions hereof.


 


ARTICLE
III - DEFINITIONS AND CONSTRUCTION


 


Section 3.1                                      Definitions.  The following terms shall have the following
meanings when used in this Policy with initial capital letters:


 


(a)                                  “Base
Pay” of a Participant means the Participant’s annual base salary rate as in
effect on the Termination Date from the Participant’s Employer(s); provided,
however, that any reductions in Base Pay following the date of the Change in
Control will not be taken into account when determining Base Pay hereunder.


 


(b)                                 “Board”
means the Board of Directors of the Company.


 

















 


(c)                                  “Change
in Control” of the Company shall be deemed to have occurred if the events
set forth in anyone of the following paragraphs shall have occurred:


 


(i)                                     any
“person” as such term is used in Sections B(d) and 14(d) of the
Exchange Act (other than the Company, any trustee or other fiduciary holding
securities under any employee benefit Policy of the Company or any corporation
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company),
is or becomes, including pursuant to a tender or exchange offer for shares of
Common Stock pursuant to which purchases are made, the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 25% or more of the combined voting power
of the Company’s then outstanding securities, other than in a transaction
arranged or approved by the Board prior to its occurrence; provided, however,
that if any such person will become the beneficial owner, directly or
indirectly, of securities of the Company representing 34% or more of the
combined voting power of the Company’s then outstanding securities, a Change in
Control will be deemed to occur whether or not any or all of such beneficial
ownership is obtained in a transaction arranged or approved by the Board prior
to its occurrence, and other than in a transaction in which such person will
have executed a written agreement with the Company (and approved by the Board)
on or prior to the date in which such person becomes the beneficial owner of
25% or more of the combined voting power of the Company’s then outstanding
securities, which agreement imposes one or more limitations on the amount of
such person’s beneficial ownership of shares of Common Stock, if, and so long
as, such agreement (or any amendment thereto approved by the Board provided
that no such amendment will cure any prior breach of such agreement or any
amendment thereto) continues to be binding on such person and such person is in
compliance (as determined by the Board in its sole discretion) with the terms
of such agreement (including such amendment); provided, however, that if any
such person will become the beneficial owner, directly or indirectly, of
securities of the Company representing 50% or more of the combined voting power
of the Company’s then outstanding securities, a Change in Control will be
deemed to occur whether or not such beneficial ownership was held in compliance
with such a binding agreement, and provided further that the provisions of this
subparagraph (i) shall not be applicable to a transaction in which a
corporation becomes the owner of all the Company’s outstanding securities in a
transaction which complies with the provisions of subparagraph (iii) of
this Section 3.1(c) (e.g., a reverse triangular merger); or


 


(ii)                                  during
any thirty-six consecutive calendar months, individuals who constitute the
Board on the first day of such period or any new director (other than a
director whose initial assumption of office is in connection with an actual or
threatened election contest including, but not limited to, a consent
solicitation, relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election by the Company’s
stockholders was approved or recommended by a vote of at least two-thirds (2/3)
of the directors then still in office who were either directors on the first
day of such 


 


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period, or whose
appointment, election or nomination for election was previously so approved or
recommended, shall cease for any reason to constitute at least a majority
thereof; or


 


(iii)                               there
is consummated a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the Company
outstanding immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof) more than 50% of the
combined voting power of the securities of the Company or such surviving entity
or any parent thereof outstanding immediately after such merger or
consolidation, and in which no “person” (as defined under Subsection (i) above)
acquires 50% or more of the combined voting power of the securities of the
Company or such surviving entity or parent thereof outstanding immediately
after such merger or consolidation; or


 


(iv)                              the
stockholders of the Company approve a Policy of complete liquidation or
dissolution of the Company or there is consummated an agreement for the sale or
disposition by the Company of all or substantially all of the Company’s assets,
other than a sale or disposition by the Company of all or substantially all of
the Company’s assets to an entity, more than 50% of the combined voting power
of the voting securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the Company
immediately prior to such sale.


 


(d)                                 “Code”
means the Internal Revenue Code of 1986, as amended.


 


(e)                                  “Company”
means Ecolab Inc., a Delaware corporation, and any successor thereto as
provided in Section 7.1 hereof.


 


(f)                                    “Effective
Date” means January 1, 2005.


 


(g)                                 “Employer”
means the Company, any Subsidiary or any “affiliated organization” which
employs an Executive.  For purposes of
this Policy, an “affiliated organization” is the Company and (i) any
corporation that is a member of a controlled group of corporations (within the
meaning of Code Section 1563(a) without regard to Code Sections
1563(a)(4) and 1563(e)(3)(C) that includes the Company, (ii) any
trade or business (whether or not incorporated) that is controlled (within the
meaning of Code Section 414(c)) by the Company, (iii) any member of
an “affiliated service group” (within the meaning of Code Section 414(m) of
which the Company is a member or (iv) any other organization that,
together with the Company, is treated as a single employer pursuant to Code Section 414(o) or
the regulations thereunder; provided that the provisions of Code Section 1563(a) shall
be applied by substituting the phrase “more than 50 percent” for the phrase “at
least 80 percent” wherever it appears in such Code Section.


 


(h)                                 “Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


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(i)                                     “Executive”
means any person who is designated as an officer of the Company by the Board
and who is employed by an Employer as a salaried employee on a substantially
full-time basis, other than a person who is designated solely as an assistant
officer.


 


(j)                                     “Good
Reason” means, without the express written consent of the Participant:


 


(i)                                     the
assignment to the Participant of any duties inconsistent in any substantial
respect with the Participant’s position, authority or responsibilities as in
effect during the 90-day period immediately preceding the Change in Control
which assignment results in a substantial diminution in such position,
authority or responsibilities or any other substantial adverse change in such
position (including titles), authority or responsibilities, excluding an
isolated, insubstantial and inadvertent action not taken in bad faith and which
is remedied by the Employer as set forth below.


 


(ii)                                  any
failure by the Employer to furnish the Participant with compensation and
benefits at a level substantially equal to or exceeding those received by the
Participant from the Employer during the 90-day period preceding the Change in
Control, other than (A) an insubstantial and inadvertent failure remedied
by the Employer as set forth below, (B) a reduction in compensation which
is applied to all non-union employees of the Employer in the same dollar amount
or percentage or (C) a reduction or modification of any employee benefit
program covering substantially all of the employees of the Employer, which
reduction or modification generally applies to all employees covered under such
program; or


 


(iii)                               the
Employer’s requiring the Participant to be based or to perform services at any
office or location that is in excess of 50 miles from the principal location of
the Participant’s work during the 90-day period immediately preceding the
Change in Control, except for travel reasonably required in the performance of
the Participant’s responsibilities.


 


Before a termination by the Participant under this Section 3.1(j) will
constitute termination for Good Reason, the Participant must give the Company a
Notice of Termination within 30 calendar days of the occurrence of the event
that constitutes Good Reason.  Failure to
provide such Notice of Termination within such 30-day period shall be
conclusive proof that the Participant shall not have Good Reason to terminate
employment.


 


For purposes of this Section 3.1(j), Good Reason shall exist only
if the Employer fails to remedy the event or events constituting Good Reason
within 30 calendar days after receipt of the Notice of Termination from the
Participant.  If the Participant
determines that Good Reason for termination exists and timely files a Notice of
Termination, such determination shall be presumed to be true and the Company
will have the burden of proving that Good Reason does not exist.


 


(k)                                  “Incentive
Pay” means the target bonus as notified to the Participant for the year in
which the Termination Date occurs under the Management Incentive Plan or the 


 


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Management
Performance Incentive Plan, as applicable to the Participant, or if such Plan
or Plans are no longer in effect, the annual bonus, incentive or other payment
of compensation in addition to Base Pay, made or to be made in regard to
services rendered in any year or other annual measurement period pursuant to
any bonus, incentive, performance, or similar agreement, policy, Policy,
program or arrangement of the Employer or any successor thereto.


 


(l)                                     “Just
Cause” means without the written consent of the Company, the Participant (i) participates
in dishonesty, fraud, misrepresentation, embezzlement or deliberate injury or
attempted injury, in each case related to the Company, an Employer or a
Subsidiary, (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
Participant’s overall duties or (iv) materially breaches any
confidentiality or noncompete agreement entered into with the Company or an
Employer.  The Company shall have the
burden of proving that Just Cause exists.


 


For purposes of this Policy, the Participant shall not be deemed to
have been terminated for “Just Cause” hereunder unless (A) the Participant
receives a Notice of Termination setting forth the grounds for the termination
at least 30 calendar days prior to the specified Termination Date, (B) if
requested by the Participant, the Participant (and/or the Participant’s counsel
or other representative) is granted a hearing before the full Board and (C) a
majority of the members of the full Board determine that the Participant
violated one or more of the provisions of the definition of “Just Cause” set
forth above.


 


(m)                               “Notice
of Termination” means (i) a written notice of termination by the
Company to the Executive or (ii) a written notice of termination for Good
Reason by the Executive to the Company, in either case, setting forth in
reasonable detail the specific reason for termination and the facts and
circumstances claimed to provide a basis for termination of employment under
the provision indicated.


 


(n)                                 “Participant”
means an Executive who meets the eligibility requirements of Article IV
hereof, other than an Executive who has entered into an employment, severance
or other similar agreement with the Company (other than a stock option or
restricted stock agreement or other form of participation document entered into
pursuant to an Employer-sponsored plan which may incidentally refer to
accelerated vesting or accelerated payment upon a change in control (as defined
in such separate plan or document)) which becomes operative upon the occurrence
of a change in control of the Company (as defined in such agreement).


 


(o)                                 “Policy”
means this Change in Control Severance Compensation Policy.


 


(p)                                 “Protection
Period” means the period of time commencing on the date of the first
occurrence of a Change in Control and continuing until the second anniversary
of the occurrence of the Change in Control.


 


(q)                                 “Severance
Payment” means the payment of severance compensation as provided in Article V
hereof.


 


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(r)                                    “Subsidiary”
means any corporation or other legal entity a majority of the securities
entitled to vote generally in the election of directors of which are owned by
the Company or another Subsidiary of the Company.


 


(s)                                  “Termination
Date” means, (i) with respect to a termination by the Employer, the
date on which the Participant’s employment is terminated as stated in the
Notice of Termination and (ii) with respect to a termination by the
Participant for Good Reason, the date that is 15 calendar days following the Company’s
receipt of the Notice of Termination.


 


Section 3.2                                      Status of
Policy/Applicable Law.


 


(a)                                  This
Policy is classified as a “payroll practice” under Department of Labor
Regulation Section 2510.3-1(b) and, as such is not subject to the
provisions of the Employee Retirement Income Security Act of 1974, as amended.  The Policy will be interpreted and
administered accordingly.


 


(b)                                 This
Policy shall be administered, construed and enforced according to the laws of
the State of Minnesota.


 


Section 3.3                                      Severability.  If a provision of this Policy shall be held
illegal or invalid, the illegality or invalidity shall not affect the remaining
parts of this Policy and this Policy shall be construed and enforced as if the
illegal or invalid provision had not been included.


 


ARTICLE
IV - ELIGIBILITY


 


Section 4.1                                      Participation.  Each person who is an Executive on the
Effective Date shall be a Participant on the Effective Date.  Thereafter, each other person who becomes an
Executive prior to both (a) a Change in Control and (b), unless
specifically provided for by the Board at the time a Participant is elected as
an Executive, the date a notice of termination of the Policy is provided under Section 8.1(a),
shall automatically become a Participant on the day on which such person
becomes an Executive.


 


Section 4.2                                      Duration of Participation.  A Participant shall cease to be a Participant
and shall have no rights hereunder, without further action, when he or she
ceases to be an Executive, unless such Participant is then entitled to payment
of a Severance Payment as provided in Section 5.1 hereof.  A Participant entitled to a Severance Payment
shall remain a Participant in this Policy until the full amount of the
Severance Payment has been paid to the Participant.


 


ARTICLE
V - SEVERANCE PAYMENTS


 


Section 5.1                                      Right to
Severance Payment.


 


(a)                                  Subject
to Subsection (c) hereof, a Participant shall be entitled to receive from
the Company a Severance Payment in the amount provided in Section 5.2
hereof if there has been a Change in Control and if, after a Change in Control
and within the Protection Period, (i) the Participant’s employment by an
Employer shall be terminated by the 


 


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Employer without
Just Cause or (ii) the Participant shall terminate employment with an
Employer for Good Reason.


 


(b)                                 Notwithstanding
anything to the contrary contained in this Policy, any termination of employment
of the Participant or removal of the Participant from the office or position in
the Company that occurs prior to a Change in Control but which the Participant
reasonably demonstrates occurred at the request of a third party who had taken
steps reasonably calculated to effect the Change in Control shall be deemed to
be a termination or removal of the Participant after a Change in Control for
purposes of this Policy.


 


(c)                                  Notwithstanding
anything to the contrary contained in this Policy, a Participant shall not be
entitled to receive any Severance Payment hereunder unless, no later than by March 10 of the calendar year following
the calendar year of the Participant’s Termination Date (i) he or
she has signed and returned to the Company a release in the form prescribed by
the Company and (ii) the applicable rescission period for such release has
expired.


 


Section 5.2                                      Amount of
Severance Payment.


 


(a)                                  Each
Participant entitled to a Severance Payment under this Policy shall receive the
following Severance Payment from the Company.


 


(i)                                     A
lump sum cash payment in an amount equal to two times the sum of (A) the
Participant’s Base Pay plus (B) Incentive Pay; provided, however, that the
amount of such cash payment determined pursuant to this Section 5.2(a)(i) shall
be reduced by an amount equal to the aggregate amount of any other cash
payments in the nature of severance payments paid or payable by the Company or
the Employer or any Subsidiary pursuant to any agreement, policy, program,
arrangement or requirement of statutory or common law (other than this Policy
or cash payments received in lieu of stock incentives);


 


(ii)                                  A
lump sum cash payment in an amount equal to (A) the Incentive Pay for the
year in which the Termination Date occurs, pro rated to reflect time worked
during the year in which the Termination Date occurs, days worked during the
year divided by 365 days times the Incentive Pay expressed as a dollar amount)
and (B) reduced by any amounts paid under the terms of the applicable
incentive bonus Policy itself for the same period of time;


 


(iii)                               Reasonable
fees for outplacement services, by a firm selected by the Company and at the
expense of the Company, in an amount not in excess of 20% of Base Pay;
provided, however, that all such fees shall be incurred by the Participant no
later than the last day of the second calendar year, and all amounts under this
paragraph (iii) shall be paid no later than the last day of the third
calendar year, following the year in which the Participant’s Termination Date
occurs; and


 


(iv)                              Eligibility
for continuation coverage pursuant to Section 4980B of the Code (or any successor
provision thereto) under the Employer’s medical, dental 


 


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and other group
health plans, or successor plans as in effect from time to time; provided,
however, that (A) the Company shall reimburse the Participant, on a
semi-annual basis, for any costs incurred in securing such continuation
coverage that are in excess of the costs that would have been incurred by the
Participant immediately prior to the Termination Date to obtain such coverage
and (B) such reimbursements shall in no event continue beyond a period of eighteen
(18) months following the Termination Date.


 


(b)                                 Notwithstanding
any provision of this Policy to the contrary, if any amount or benefit to be
paid or provided under this Policy or any other plan or agreement between the
Participant and an Employer 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 Policy 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 Participant, 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
Participant or the Employer, the determination of whether any reduction in such
payments or benefits to be provided under this Policy 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 accounts shall be final and binding on all persons.  The fact that the Participant’s right to
payments or benefits may be reduced by reason of the limitations contained in
this Section 5.2(b) shall not of itself limit or otherwise affect any
other rights of the Participant pursuant to this Policy.  In the event that any payment or benefit
intended to be provided under this Policy or otherwise is required to be
reduced pursuant to this Section, payment under this Policy shall be reduced
before payments under any other arrangements are reduced and the Participant
(in his or her sole discretion) shall be entitled to designate the payments
and/or benefits under this Policy to be so reduced in order to give effect to
this Section.  The Employer shall provide
the Participant with all information reasonably requested by the Participant to
permit the Participant to make such designation.  In the event that the Participant fails to
make such designation within ten business days of receiving such information,
the Employer may effect such reduction in any manner it deems appropriate.


 


(c)                                  The
Participant shall not be required to mitigate damages or the amount of his or
her Severance Payment by seeking other employment or otherwise, nor shall the
amount of such payment be reduced by any compensation earned by the Participant
as a result of employment after the termination of his or her employment by an
Employer.


 


Section 5.3                                      Time of
Severance Payment.  The Severance
Payment to which a Participant is entitled under Section 5.2(a)(i) and
(ii) shall be paid to the Participant by the Company in cash and in full,
not later than March 15 of the
calendar year following the calendar year in which the Participant’s
Termination Date occurs, subject to Section 5.1(c).  If such a Participant should die 


 


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before all amounts payable to him have been paid, such
unpaid amounts shall be paid to the Participant’s spouse, if living, otherwise
to the personal representative of the Participant’s estate.


 


Section 5.4                                      Liability for
Payment.  The Company shall be solely
liable for and shall pay the Severance Payments (or cause the Severance
Payments to be paid) to the Executive.


 


ARTICLE
VI - OTHER RIGHTS AND BENEFITS NOT AFFECTED


 


Section 6.1                                      Other Benefits.  Except as provided in Section 5.2(b),
neither the provisions of this Policy nor the Severance Payment provided for
hereunder shall reduce or increase any amounts otherwise payable, or in any
other way affect a Participant’s rights as an employee of an Employer, whether
existing now or hereafter, under any benefit, incentive, retirement, stock
option, stock bonus, stock purchase or employment agreement, policy (other than
this Policy), program or arrangement (collectively, the “Other Plans”), except
to the extent specifically provided under such Other Plans.


 


Section 6.2                                      Certain
Limitations.  This Policy does not
constitute a contract of employment or impose on any Participant, the Company
or any other Employer any obligation to retain any Participant as an employee
or in any other capacity, to change or not change the status, terms or
conditions of any Participant’s employment, or to change or not change the
Employer’s policies regarding termination of employment.


 


ARTICLE
VII - SUCCESSORS SECTION


 


Section 7.1                                      Successors.  Without limiting the obligations of any
person or entity under applicable law, the Company shall require any successor
or assignee, whether direct or indirect, by purchase, merger, consolidation or
otherwise, to all or substantially all the business or assets of the Company,
expressly and unconditionally to assume and agree to perform the Company’s
obligations under this Policy, in the same manner and to the same extent that
the Company would be required to perform if no such succession or assignment
had taken place.  In such event, the term
“Company,” as used in this Policy, shall mean the Company as hereinbefore defined
and any successor assignee to the business or assets which by reason hereof
becomes bound by the terms and provisions of this Policy.


 


ARTICLE
VIII - DURATION, AMENDMENT AND TERMINATION


 


Section 8.1                                      Duration/Termination.


 


(a)                                  This
Policy will terminate as to all Participants: (i) if a Change in Control
has not occurred, the date that is 2 years following the giving of notice to
each Executive who is a Participant on the date of the notice that the Board
has determined (by resolution adopted by a majority of the members of the
Board) that the Policy will terminate; and (ii) if a Change in Control has
occurred, the expiration of the Protection Period.


 


(b)                                 Notwithstanding
the foregoing, if a Change in Control occurs, this Policy shall continue in
full force and effect, and shall not terminate or expire until after all Participants
who were Participants on the date of the Change in Control who became entitled
to a Severance Payment hereunder shall have received such payment in full.


 


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Section 8.2                                      Amendment.  Unless a Change in Control has previously
occurred, this Policy may be amended in any respect by resolution adopted by a
majority of the members of the Board; provided, however, that no such amendment
shall adversely affect the rights of a Participant under this Policy without
the Participant’s consent unless such amendment does not become effective until
the date that is two years following the giving of notice to all Participants
of the adoption of such amendment by the Board. 
If a Change in Control occurs, notwithstanding the foregoing, this
Policy no longer shall be subject to amendment, change, substitution, deletion
or revocation in any respect.


 


Section 8.3                                      Form of
Amendment/Termination.  The form of
any proper amendment or termination of this Policy shall be a written
instrument signed by a duly authorized officer or officers of the Company,
certifying that the amendment or termination has been approved by the Board as
provided in Sections 8.1 or 8.2 hereof.  A
proper amendment of this Policy automatically shall effect a corresponding
amendment to all Participants’ rights hereunder.  A proper termination of this Policy
automatically shall effect a termination of all Participants’ rights and
benefits hereunder without further action.


 


ARTICLE
IX - MISCELLANEOUS SECTION


 


Section 9.1                                      Legal Fees and
Expenses/Binding Arbitration.


 


(a)                                  It
is the intent of the Company that Participants not be required to incur any
expenses associated with the enforcement of rights under this Policy because
the cost and expense thereof would substantially detract from the benefits
intended to be extended to Participants hereunder.  Accordingly, if the Company or any Employer,
as the case may be, has failed to comply with any of its obligations under this
Policy or in the event that the Company or any Employer, or any other person
takes any action to declare this Policy void or unenforceable, or institutes
any litigation designed to deny, or to recover from, a Participant the benefits
intended to be provided to the Participant hereunder, the Company and each
Employer irrevocably authorizes the Participant from time to time to retain
counsel of his or her choice, at the expense of the Company, as hereafter
provided, to represent the Participant in connection with the initiation or
defense of any legal action, whether by or against the Company or any Employer,
in any jurisdiction.  The Company shall
pay or cause to be paid and shall be solely responsible for any and all
reasonable attorneys’ fees and expenses incurred by the Participant in enforcing
his or her rights hereunder individually (but not as a representative of any
class) as a result of the Company’s or any Employer’s, failure to perform this
Policy or any provision hereof or as a result of the Company or any Employer,
or any person contesting the validity or enforceability of this Policy or any
provision hereof.


 


(b)                                 Notwithstanding
any provision of this Policy to the contrary, (including, without limitation,
determining whether a termination is for Just Cause or with Good Reason) any dispute
or controversy arising under or in connection with this Policy shall be settled
by binding arbitration, conducted before a panel of three arbitrators sitting
in a location selected by the Participant within 50 miles from the location of
his or her job with his or her Employer, in accordance with current Employment
Dispute rules of the American Arbitration Association (“AAA”) then in
effect.  Within fifteen days after the 


 


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commencement of
arbitration, each of the Company and the Participant shall select one person to
act as arbitrator, and the two selected shall select a third arbitrator within
ten days of their appointment.  If the
arbitrators are unable or fail to agree upon the third arbitrator, the third
arbitrator shall be selected by the AAA. 
Judgment shall be entered on the award of the arbitrator in any court
having jurisdiction.  All expenses of
such arbitration, including the fees and expenses of the counsel for the
Participant, shall be borne by the Company.


 


(c)                                  Notwithstanding
any provision of the Policy to the contrary, all fees and expenses subject to
payment or reimbursement pursuant to this Section 9.1 shall be paid not
later than the last day of the calendar year following the calendar year in
which the Participant incurs such fees or expenses.  The Participant shall be solely responsible
for timely providing to the Company sufficient proof of the fees and expenses
to be paid or reimbursed pursuant to this Section.


 


Section 9.2                                      Withholding of
Taxes.  The Employer may withhold
from any amounts payable under this Policy all foreign, federal, provincial,
state, city or other taxes as shall be required pursuant to any law or
government regulation or ruling.


 


Section 9.3                                      Successors.


 


(a)                                  This
Policy shall inure to the benefit of and be enforceable by the Participant’s
personal or legal representatives, executors, administrators, successors,
heirs, distributees and/or legatees.


 


(b)                                 The
rights under this Policy are personal in nature and neither the Company nor any
Participant shall, without the consent of the other, assign, transfer or
delegate any rights or obligations hereunder except as expressly provided in Section 7.2
hereof.  Without limiting the generality
of the foregoing, the Participant’s right to receive a Severance Payment
hereunder shall not be assignable, transferable or delegable, whether by
pledge, creation of a security interest or otherwise, other than by a transfer
by his or her will or by the laws of descent and distribution and, in the event
of any attempted assignment or transfer contrary to this Section 9.3(b),
the Company, shall have no liability to pay any amount so attempted to be
assigned, transferred or delegated.


 


(c)                                  The
Company and each Participant recognize that each party will have no adequate
remedy at law for breach by the other of any of the agreements contained herein
and, in the event of any such breach, the Company, and each Participant hereby
agree and consent that the other shall be entitled to a decree of specific
performance, mandamus or other appropriate remedy to enforce performance of
this Policy.


 


Section 9.4                                      Notices.  For all purposes of this Policy, all
communications, including without limitation notices, consents, requests or
approvals provided for herein shall be in writing and shall be deemed to have
been duly given when delivered or five business days after having been mailed
by registered or certified mail, return receipt requested, postage prepaid,
addressed to the Company, (to the attention of the General Counsel of the
Company), at its principal executive office and to any Participant at his or
her principal residence as shown in the relevant records of 


 


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the Employer, or to such other address as any party
may have furnished to the other in writing and in accordance herewith, except
that notices of change of address shall be effective only upon receipt


 


Executed this 19th day of December, 2008, to be effective on the
Effective Date.


 


	
   

  	
  ECOLAB
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven L. Fritze

  
	
   

  	
   

  	
  Steven
  L. Fritze

  
	
   

  	
   

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
  /s/
  Lawrence T. Bell

  	
   

  	
   

  
	
   

  	
  Lawrence
  T. Bell

  	
   

  	
   

  
	
   

  	
  General
  Counsel and Secretary

  	
   

  	
   

  



 


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