Exhibit 10.D


 


PERFORMANCE-BASED


RESTRICTED STOCK UNIT AWARD AGREEMENT


 


THIS AGREEMENT is entered into and effective as of                           ,
20     (the “Date of Grant”), by and between Ecolab Inc.
(the “Company”) and                                             
(the “Grantee”).


 


A.                   The Company
has adopted the Ecolab Inc. 2010 Stock Incentive Plan (the “Plan”), authorizing
the Board of Directors of the Company, or a committee as provided for in the
Plan (the Board or such a committee to be referred to as the “Committee”), to
grant restricted Stock Unit Awards to certain employees of the Company and its
Subsidiaries.


 


B.                     The Company
desires to give the Grantee an incentive to advance the interests of the
Company by granting to the Grantee an award of restricted stock units pursuant
to the Plan.


 


Accordingly,
the parties agree as follows:


 


ARTICLE 1.                              GRANT
OF AWARD.


 


The Company hereby grants to the Grantee a performance-based
restricted Stock Unit Award (the “Award”) consisting of                          units
(the “Award Units”), each of which is a bookkeeping entry representing the
right to receive one share of the Company’s common stock, par value $1.00 per
share (the “Common Stock”).  The Award
and Award Units are subject to the terms, conditions, restrictions and risk of
forfeiture set forth in this Agreement and in the Plan.


 


ARTICLE 2.                              VESTING
OF AWARD UNITS.


 


2.1                 Subject to Article 5 below, some or all of the
Award Units will vest and become non-forfeitable (“Vested”) on December 31,
20     (the “Vesting Date”), provided that (a) the
Committee has certified that the Company has achieved a level of average annual
Return on Invested Capital (as defined below) of at least         
percent for the three (3) year period from January 1, 20    
to December 31, 20     (the “Performance Period”), and
(b) the Grantee remains in the continuous employ of or service with the
Company or any Subsidiary until the Vesting Date.  The number of Award Units that will Vest on
the Vesting Date will be determined in accordance with Section 2.2 below.


 


2.2                 The
following chart sets forth the percentage of the Award Units (or of a portion
of the Award Units as provided in Section 5.1 of this Agreement) that will
vest on the Vesting Date based upon the Company’s level of achievement of
average annual Return on Invested Capital for the Performance Period:


 


	
  Average Annual Return on

  Invested Capital Level

  	
   

  	
  Vested Award Unit

  Percentage

  	
   

  
	
  Threshold
  Level — [ %]

  	
   

  	
  [   ]

  	
   

  
	
  Maximum
  Level — [ %]

  	
   

  	
  [   ]

  	
   

  



 


The actual
percentage of Award Units that will Vest based upon the Company’s achievement
of average annual Return on Invested Capital between the Threshold Level and
Maximum Level will be interpolated on a straight line basis, with the
corresponding number of Vested Award Units resulting from such determination
rounded up to the next whole Award Unit. 
If the average annual Return on Invested Capital for the Performance
Period is below the Threshold Level, no Award Units will Vest.  Any Award Units that do not Vest on the
Vesting Date will be forfeited.


 

















 


2.3                 The
Committee shall certify the level of average annual Return on Invested Capital
for the Performance Period and the percentage of Award Units that Vest as
provided in Section 2.2 above no later than March 1, 20    .


 


2.4                 For the
purposes of this Agreement, average annual Return on Invested Capital is
calculated by dividing (i) the average of the Company’s Net Operating
Profit After Taxes (as defined below) for each of the three fiscal years during
the Performance Period, by (ii) the average of the Company’s Invested
Capital (as defined below) as of the last day of the fiscal quarter immediately
preceding the Performance Period and of each fiscal quarter during the
Performance Period.  “Net Operating
Profit After Taxes” is defined as the Company’s operating income multiplied by
1 minus the Company’s effective tax rate, each as reported in the Company’s
consolidated financial statements for each fiscal year during the Performance
Period, adjusted to eliminate the after-tax effects of
any acquisition during the Performance Period that was approved by the
Board as well as (a) the cumulative
effects of accounting or tax changes, (b) gains and losses from
discontinued operations, (c) extraordinary gains or losses, and (d) charges
for restructurings, each as defined by generally accepted accounting principles
and as identified in the Company’s financial statements (including accompanying
notes), management’s discussion and analysis or other filings with the
Securities and Exchange Commission by the Company.  “Invested
Capital” is defined as the Company’s (a) total assets less cash and cash
equivalents, minus (b) total liabilities less short-term and long-term
debt, each as reported by the Company as of the end of the fiscal quarters
described above and adjusted to eliminate the impact of the same factors
identified in the previous sentence.


 


2.5                 The
Committee may adjust the calculation of Return on Invested Capital applicable
to the Award Units under the circumstances, for the purpose and to the extent
contemplated by Section 3.2(c) of the Plan.  Further, the actual number of Award Units
that become Vested based upon achieving the specified level of average annual
Return on Invested Capital during the Performance Period may be adjusted (but only
downward if the Grantee is a Covered Employee and this Award is intended to be
Performance-Based Compensation subject to Section 17 of the Plan) by the
Committee in its sole and absolute discretion based on such factors as the
Committee determines to be appropriate and/or advisable.


 


ARTICLE 3.                              SETTLEMENT
OF VESTED AWARD UNITS.


 


Except as may otherwise be provided in Section 5.2
below, Vested Award Units will be paid to the Grantee by no later than March 15,
20    .  Each Vested
Award Unit will be paid to the Grantee in one share of Common Stock, provided
that the Company will have no obligation to issue shares of Common Stock
pursuant to this Agreement unless and until the Grantee has satisfied any
applicable tax obligations pursuant to Article 9 below and such issuance
otherwise complies with all applicable law. 
Prior to the time the Vested Award Units are settled, the Grantee will
have no rights other than those of a general creditor of the Company.  The Award Units represent an unfunded and
unsecured obligation of the Company.


 


ARTICLE 4.                              GRANT
RESTRICTIONS.


 


4.1                 Transferability.  Any attempt to transfer, assign or encumber
the Award Units other than in accordance with this Agreement and the Plan will
be null and void, and will result in the immediate termination and forfeiture
of the Award and all Award Units that have not yet Vested.


 


4.2                 Dividends
and Other Distributions.  Subject to Article 6 of this Agreement,
the Grantee will have no right to receive dividends, dividend equivalents or
other distributions with respect to Award Units.


 


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ARTICLE 5.                              TERMINATION
OF EMPLOYMENT OR OTHER SERVICE; CHANGE IN CONTROL.


 


5.1                 Termination
of Employment or Other Service.  This Award is considered a Stock Unit Award
subject to a service-based vesting condition and to the achievement of a
specified Performance Criterion as a condition to vesting for purposes of Section 12
of the Plan.  Except as otherwise
provided in this Section 5.1, the effect of the termination of the Grantee’s
employment or other service with the Company and all Subsidiaries prior to the
Vesting Date of this Award will be as provided in Sections 12.1(c), 12.2(c),
12.3(b) and 12.5 of the Plan.  If
the Grantee’s employment by or other service with the Company and all
Subsidiaries is terminated by the Company or any Subsidiary without Cause prior
to the Vesting Date, then (i) for purposes of Section 2.1(b) of
this Agreement, the Grantee will be deemed to have been in the continuous
employ of or service with the Company or any Subsidiary until the Vesting Date
with respect to one-third of the Award Units if such termination occurs during
the second year of the Performance Period and with respect to two-thirds of the
Award Units if the such termination occurs during the third year of the
Performance Period, and (ii) for purposes of determining the number of
Vested Award Units on the Vesting Date under Section 2.2 of this
Agreement, the Vested Award Unit Percentage determined in accordance with Section 2.2
will be applied to the number of Award Units as to which the service-based
vesting condition is deemed satisfied in accordance with clause (i) of
this sentence, rather than to the total number of Award Units.


 


5.2                 Change in
Control.  If a Change in Control
occurs prior to the Vesting Date, the effect on this Award shall be as provided
in Section 14.2 of the Plan.  If
vesting of Award Units should be accelerated in accordance with Section 14.2
of the Plan, Vested Unit Awards will be settled and paid to the Grantee no
later than two and one-half months after the end of the Grantee’s taxable year
in which the Award Units became Vested.


 


ARTICLE 6.                              ADJUSTMENTS.


 


The number and kind of securities subject to this Award will
be subject to adjustment under the circumstances and to the extent specified in
Section 4.3 of the Plan.


 


ARTICLE 7.                              RIGHTS
AS A STOCKHOLDER.


 


The Grantee will have no rights as a stockholder with
respect to any of the Award Units until the Award Units are settled following
vesting and the Grantee becomes the holder of record of shares of Common Stock.


 


ARTICLE 8.                              EMPLOYMENT
OR SERVICE.


 


Nothing in this Agreement will be construed to (a) limit
in any way the right of the Company to terminate the employment or service of
the Grantee at any time, or (b) be evidence of any agreement or
understanding, express or implied, that the Company will retain the Grantee in
any particular position at any particular rate of compensation or for any
particular period of time.


 


ARTICLE 9.                              WITHHOLDING
TAXES.


 


By accepting this Award, the Grantee (i) acknowledges his or her
obligation to pay any federal, foreign, state and local withholding or
employment-related taxes attributable to this Award as provided in Section 13
of the Plan, and (ii) consents and directs the Company or its third party
administrator to withhold the number of shares of Common Stock issuable upon
the vesting of some or all of the Award


 


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Units
as the Company, in its sole discretion, deems necessary to satisfy such
withholding obligations.  For purposes of satisfying the
Grantee’s withholding and employment-related tax obligations, shares withheld
by the Company will be valued at their Fair Market Value on the date of
settlement.


 


ARTICLE 10.                        PERFORMANCE-BASED
COMPENSATION.


 


Any payment of Common Stock received for the Vested Award
Units is intended to qualify as “performance-based compensation” for purposes
of Section 162(m) of the Internal Revenue Code, and no action will be
taken which would cause such payment to fail to satisfy the requirements of
such exemption.


 


ARTICLE 11.                        AUTHORIZATION
TO RELEASE AND TRANSFER NECESSARY PERSONAL INFORMATION.


 


The Grantee hereby explicitly and unambiguously consents to
the collection, use and transfer, in electronic or other form, of the Grantee’s
personal data by and among, as applicable, the Company and its Subsidiaries for
the exclusive purpose of implementing, administering and managing the Grantee’s
participation in the Plan.  The Grantee
understands that the Company may hold certain personal information about the
Grantee, including, but not limited to, the Grantee’s name, home address and
telephone number, date of birth, social security number (or any other social or
national identification number), salary, nationality, job title, number of
Award Units and/or shares of Common Stock held and the details of all Award
Units or any other entitlement to shares of Common Stock awarded, cancelled,
vested, unvested or outstanding for the purpose of implementing, administering
and managing the Grantee’s participation in the Plan (the “Data”).  The Grantee understands that the Data may be
transferred to the Company or to any third parties assisting in the
implementation, administration and management of the Plan, that these
recipients may be located in the Grantee’s country or elsewhere, and that any
recipient’s country (e.g., the United States) may have different data privacy
laws and protections than the Grantee’s country.  The Grantee understands that he or she may
request a list with the names and addresses of any potential recipients of the
Data by contacting his or her local human resources representative or the
Company’s stock plan administrator.  The
Grantee authorizes the recipients to receive, possess, use, retain and transfer
the Data, in electronic or other form, for the sole purpose of implementing,
administering and managing the Grantee’s participation in the Plan, including
any requisite transfer of such Data to a broker or other third party assisting
with the administration of Award Units under the Plan or with whom shares of
Common Stock acquired pursuant to the vesting of the Award Units or cash from
the sale of such shares may be deposited. 
Furthermore, the Grantee acknowledges and understands that the transfer
of the Data to the Company or to any third parties is necessary for the Grantee’s
participation in the Plan.  The Grantee
understands that the Grantee may, at any time, view the Data, request
additional information about the storage and processing of the Data, require
any necessary amendments to the Data or refuse or withdraw the consents herein
by contacting the Grantee’s local human resources representative or the Company’s
stock plan administrator in writing.  The
Grantee further acknowledges that withdrawal of consent may affect his or her
ability to vest in or realize benefits from the Award Units, and the Grantee’s
ability to participate in the Plan.  For
more information on the consequences of refusal to consent or withdrawal of
consent, the Grantee understands that he or she may contact his or her local
human resources representative or the Company’s stock plan administrator.


 


ARTICLE 12.                        SUBJECT
TO PLAN.


 


12.1                       Terms
of Plan Prevail. 
The Award and the Award Units granted pursuant to this Agreement have
been granted under, and are subject to the terms of, the Plan.  The terms of the Plan are incorporated by
reference in this Agreement in their entirety, and the Grantee acknowledges
having received a copy of the Plan.  The
provisions of this Agreement will be interpreted as to be consistent with


 


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the Plan, and any ambiguities in this Agreement will be
interpreted by reference to the Plan.  In
the event that any provision in this Agreement is inconsistent with the terms
of the Plan, the terms of the Plan will prevail.  References in this Agreement to specific
Sections of the Plan refer to those Sections of the Plan as in effect on the
Date of Grant.


 


12.2                       Definitions.  Unless otherwise defined in this Agreement,
the terms capitalized in this Agreement have the same meanings as given to such
terms in the Plan.


 


ARTICLE 13.                        MISCELLANEOUS.


 


13.1                       Binding
Effect.  This Agreement will
be binding upon the heirs, executors, administrators and successors of the
parties hereto.


 


13.2                       Governing Law. 
This Agreement and all rights and obligations under this Agreement will
be construed in accordance with the Plan and governed by the laws of the State
of Minnesota without regard to conflicts of law provisions.  Any legal proceeding related to this Agreement
will be brought in an appropriate Minnesota court, and the parties to this
Agreement consent to the exclusive jurisdiction of the court for this purpose.


 


13.3                       Entire
Agreement. 
This Agreement and the Plan set forth the entire agreement and
understanding of the parties hereto with respect to the grant, vesting and
payment of this Award and the administration of the Plan and supersede all
prior agreements, arrangements, plans and understandings relating to the grant,
vesting and payment of this Award and the administration of the Plan.


 


13.4                       Amendment
and Waiver. 
Other than as provided in the Plan, this Agreement may be amended,
waived, modified or canceled only by a written instrument executed by the
parties hereto or, in the case of a waiver, by the party waiving compliance.


 


13.5                       Captions.  The Article, Section and paragraph
captions in this Agreement are for convenience of reference only, do not
constitute part of this Agreement and are not to be deemed to limit or
otherwise affect any of the provisions of this Agreement.


 


13.6                       Electronic
Delivery and Execution.  The Grantee hereby consents and agrees to
electronic delivery of any documents that the Company may elect to deliver
(including, but not limited to, plan documents, prospectus and prospectus
supplements, grant or award notifications and agreements, account statements,
annual and quarterly reports, and all other forms of communications) in
connection with this and any other Incentive Award made or offered under the
Plan.  The Grantee understands that,
unless revoked by giving written notice to the Company pursuant to the Plan,
this consent will be effective for the duration of the Agreement.  The Grantee also understands that the Grantee
will have the right at any time to request that the Company deliver written
copies of any and all materials referred to above.  The Grantee hereby consents to any and all
procedures the Company has established or may establish for an electronic
signature system for delivery and acceptance of any such documents that the
Company may elect to deliver, and agrees that the Grantee’s electronic
signature is the same as, and will have the same force and effect as, the
Grantee’s manual signature.  The Grantee
consents and agrees that any such procedures and delivery may be effected by a
third party engaged by the Company to provide administrative services related
to the Plan.


 


13.7                       Address
for Notice. 
All notices to the Company shall be in writing and sent to the Company’s
General Counsel at the Company’s corporate headquarters.  Notices to the Grantee shall be addressed to
the Grantee at the address as from time to time reflected in the Company’s or
Subsidiary’s employment records as the Grantee’s address.


 


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13.8                       Severability.  In the event that any provision in this
Agreement shall be held invalid or unenforceable, such provision shall be
severable from, and such invalidity or unenforceability shall not be construed
to have any effect on, the remaining provisions of this Agreement.


 


13.9                       Appendix.  Notwithstanding any provision of this
Agreement to the contrary, this grant of Award Units and the shares of Common
Stock acquired under the Plan shall be subject to any and all special terms and
provisions, if any, as set forth in the Appendix for the Grantee’s country of
residence.


 


13.10                 Counterparts.  For the convenience of the parties hereto,
this Agreement may be executed in any number of counterparts, each such
counterpart to be deemed an original instrument, and all such counterparts
together to constitute the same agreement.


 


The parties to this Agreement have executed this Agreement
effective the day and year first above written.


 


	
   

  	
   

  	
  ECOLAB INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [By
  execution of this Agreement,

  	
   

  	
  GRANTEE

  
	
  the
  Grantee acknowledges having

  	
   

  	
   

  
	
  received a
  copy of the Plan.]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
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