THE COMPANY AND ANY OTHER MEMBER
OF THE CONTROLLED GROUP THAT ADOPTS OR HAS ADOPTED ONE OR MORE OF THE PLANS
PURSUANT TO SECTION 6.3.
SECTION 1.10
"409A GUIDANCE" MEANS SECTION 409A OF THE CODE AND
PROPOSED, TEMPORARY OR FINAL REGULATIONS OR ANY OTHER GUIDANCE ISSUED
THEREUNDER.
SECTION 1.11
"PENSION PLAN" SHALL MEAN THE ECOLAB PENSION PLAN, AS
SUCH PLAN MAY BE AMENDED FROM TIME TO TIME.
SECTION 1.12
"PLANS" SHALL MEAN THOSE NON-QUALIFIED BENEFIT PLANS
LISTED ON EXHIBIT A HERETO, AS THEY MAY BE AMENDED FROM TIME TO TIME.
SECTION 1.13
"PLAN YEAR" SHALL MEAN A CALENDAR YEAR.
SECTION 1.14
"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 AN EMPLOYEE (1) IS ON MILITARY
LEAVE, SICK LEAVE, OR OTHER BONA FIDE LEAVE OF ABSENCE THAT DOES NOT
3
EXCEED SIX (6) MONTHS (OR, IN THE CASE OF DISABILITY, TWELVE (12) MONTHS), OR IF
LONGER, THE PERIOD DURING WHICH THE EMPLOYEE'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 (WHETHER AS AN EMPLOYEE OR AS AN
INDEPENDENT CONTRACTOR) 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 EMPLOYEE PROVIDED SERVICES IF THE
EMPLOYEE HAS BEEN PROVIDING SERVICES FOR LESS THAN 36 MONTHS).
FOR PURPOSES OF
THIS SECTION, "DISABILITY" SHALL MEAN ANY MEDICALLY DETERMINABLE PHYSICAL OR
MENTAL IMPAIRMENT THAT CAN BE EXPECTED TO RESULT IN DEATH OR CAN BE EXPECTED TO
LAST FOR A CONTINUOUS PERIOD OF NOT LESS THAN SIX MONTHS, WHERE SUCH IMPAIRMENT
CAUSES THE EMPLOYEE TO BE UNABLE TO PERFORM THE DUTIES OF HIS OR HER POSITION OF
EMPLOYMENT OR ANY SUBSTANTIALLY SIMILAR POSITION OF EMPLOYMENT.
WHETHER AN
EMPLOYEE HAS INCURRED A SEPARATION FROM SERVICE SHALL BE DETERMINED IN
ACCORDANCE WITH THE 409A GUIDANCE.
SECTION 1.15
"SPECIFIED EMPLOYEE" SHALL HAVE THE MEANING SET FORTH IN
SECTION 6.8.
ARTICLE II
PAYMENT OF BENEFITS
SECTION 2.1
SPECIAL OFFSET PROVISION.
NOTWITHSTANDING ANY PROVISION
OF THE PLANS TO THE CONTRARY, IF THE ADMINISTRATOR (IN HIS OR HER SOLE
DISCRETION) DETERMINES THAT AN EXECUTIVE OR DEATH BENEFICIARY IS INDEBTED TO THE
CONTROLLED GROUP AT THE TIME OF A BENEFIT PAYMENT, THE ADMINISTRATOR (IN HIS OR
HER SOLE DISCRETION) MAY REDUCE ANY SUCH BENEFIT BY THE AMOUNT OF THE
INDEBTEDNESS, PROVIDED, HOWEVER, THAT SUCH REDUCTION DOES NOT EXCEED $5,000 IN
ANY PLAN YEAR AND THE REDUCTION IS MADE AT THE SAME TIME AND IN THE SAME AMOUNT
AS THE DEBT OTHERWISE WOULD HAVE BEEN DUE FROM THE EXECUTIVE.
AN ELECTION BY
THE ADMINISTRATOR NOT TO REDUCE ANY SUCH BENEFIT SHALL NOT CONSTITUTE A WAIVER
OF THE CONTROLLED GROUP'S CLAIM FOR SUCH INDEBTEDNESS.
SECTION 2.2
WITHHOLDING/TAXES.
TO THE EXTENT REQUIRED BY APPLICABLE
LAW, THE COMPANY SHALL