EXHIBIT
(10)N(ii)


 


AMENDMENT NO. 1

TO THE ECOLAB INC.

ADMINISTRATIVE DOCUMENT FOR NON-QUALIFIED BENEFIT PLANS


(As Amended and Restated effective January 1, 2003)


WITH RESPECT TO


THE AMERICAN JOBS CREATION ACT OF 2004


 


WHEREAS,
Ecolab Inc. (the “Company”) amended and restated the Ecolab Inc. Administrative
Document for Non-Qualified Benefit Plans (the “Administrative Document”)
effective January 1, 2003; and


 


WHEREAS,
the Administrative Document provides for the administration of the
non-qualified benefit plans listed on Exhibit A thereto, one or more of which
is classified as a “nonqualified deferred compensation plan” under the Code
(each a “Non-Qualified Plan”); 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 a Non-Qualified Plan after December 31, 2004; and


 


WHEREAS,
pursuant to the AJCA, the Secretary of the Treasury and the Internal Revenue
Service will issue proposed, temporary or final regulations and/or other
guidance with respect to the provisions of new Section 409A of the Code
(collectively, the “AJCA Guidance”); and


 


WHEREAS,
the AJCA Guidance has not yet been issued; and


 


WHEREAS,
to the fullest extent permitted by Section 409A of the Code and the AJCA
Guidance, the Company wants to protect the “grandfathered” status of the
benefits that are accrued under the Non-Qualified Plans prior to January 1,
2005;


 


NOW
THEREFORE, pursuant to Section 5.1 of the Administrative Document, the
Company hereby adopts this Amendment No. 1 to the Administrative Document,
which amendment is intended to (1) allow amounts deferred under the
Non-Qualified Plans prior to January 1, 2005 to qualify for “grandfathered”
status and to continue to be governed by the law applicable to nonqualified
deferred compensation prior to the addition of Code Section 409A (as
specified in the Non-Qualified Plans as in effect before the adoption of this
Amendment No. 1) and (2) cause amounts deferred under the Non-Qualified Plans
after December 31, 2004 to be deferred in compliance with the requirements
of Code Section 409A.


 


Words
and phrases used herein with initial capital letters that are defined in the
Administrative Document are used herein as so defined and the provisions hereof
shall be effective as of the close of business on December 31, 2004.


 


Section 1


 


Article IV
of the Administrative Document is hereby amended by the addition of the
following new Section 4.6 at the end thereof, to read as follows:


 


“Section 4.6           American Jobs Creation Act (AJCA).


 


(a)           To the extent applicable, it is intended that
each Non-Qualified Plan (including all amendments thereto) comply with the
provisions of Section 409A of the Code, as enacted by the AJCA, so as to
prevent the inclusion in gross income of any amount of 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.  Each Non-Qualified
Plan shall be administered in a manner that will comply with Section 409A
of the Code, including proposed, temporary or final regulations or any other
guidance issued by the Secretary of the Treasury and the Internal Revenue
Service with respect thereto (collectively with the AJCA, the “AJCA Guidance”).  Any provisions of this Administrative
Document that would cause any Non-Qualified Plan to fail to satisfy Section 409A
of the Code (including, without limitation, those added or amended by this
Amendment No. 1) shall have no force and effect until amended to comply with
Code Section 409A (which amendment may be retroactive to the extent
permitted by the AJCA Guidance).


 


(b)           The Administrator shall not take any action
under the Non-Qualified Plans that would violate any provision of Section 409A
of the Code.  The Administrator is
authorized to adopt rules or regulations deemed necessary or appropriate in
connection with the AJCA Guidance to anticipate and/or comply with the
requirements thereof (including any transition or grandfather rules
thereunder).


 


(c)           The effective date of this Amendment No. 1 is
December 31, 2004.  In furtherance
thereof, but without limiting the foregoing, any benefit under a Non-Qualified
Plan that is deemed to have been deferred prior to January 1, 2005 and
that qualifies for “grandfathered status” under Section 409A of the Code
shall continue to be governed by the law applicable to nonqualified deferred
compensation prior to the addition of Section 409A to the Code and shall
be subject to the terms and conditions specified in the Administrative Document
as in effect prior to January 1, 2005.”


 


IN
WITNESS WHEREOF, Ecolab Inc. has executed this Amendment No. 1 and has caused
its corporate seal to be affixed this 16th day of December, 2004.


 


	
   

  	
  ECOLAB INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven L. Fritze

  
	
   

  	
  Steven L. Fritze

  
	
   

  	
  Executive Vice President and

  
	
   

  	
  Chief Financial Officer

  
	
   

  
	
  (Seal)

  
	
   

  
	
  Attest:

  
	
   

  
	
   

  
	
   

  
	
  /s/
  Lawrence T. Bell

  	
   

  
	
  Lawrence
  T. Bell

  
	
  Senior
  Vice President,

  
	
  General
  Counsel and Secretary

  
				



 


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