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ECOLAB MIRROR PENSION PLAN

Employee Benefits Plan Agreement

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This Employee Benefits Plan Agreement involves

ECOLAB INC

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Title: ECOLAB MIRROR PENSION PLAN
Date: 2/27/2009
Industry: Personal and Household Prods.     Sector: Consumer/Non-Cyclical

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EXHIBIT (10)M

 

ECOLAB MIRROR PENSION PLAN

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

 

WHEREAS, Ecolab Inc. (the “Company”) has established the Ecolab Pension Plan (the “Pension Plan”), a qualified defined benefit pension plan; and

 

WHEREAS, Sections 401(a)(17) and 415 of the Code place certain limitations on the amount of benefits that would otherwise be made available under the Pension Plan for certain participants; and

 

WHEREAS, the Company previously established the Ecolab Mirror Pension Plan (the “Plan”) to provide the benefits which would otherwise have been payable to such participants under the Pension Plan except for such limitations, in consideration of services performed and to be performed by such participants for the Company and certain related corporations.

 

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 Mirror Pension 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 Mirror Pension Benefits, effective retroactively as of January 1, 2005 and (b) comply, with respect to the Non-Grandfathered Mirror Pension Benefits thereunder, 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 Section 1.4 and 3.2(2)(c).  Notwithstanding any provision of the Plan to the contrary, an Executive’s Mirror Pension 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 3.1, during the period commencing on January 1, 2005 and ending on the earlier of December 31, 2008 or the date on which the Executive terminates his services with all 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.

 

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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. 108-357 (the “AJCA”), so as to prevent the inclusion in gross income of any amount of Mirror Pension 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 Mirror Pension Benefits (including any Mirror Pre-Retirement Pension 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 Administrative Document or the Pension Plan 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                                       Code Limitations ” shall mean the limitations imposed by Code Sections 401(a)(17) and 415, or any successor(s) thereto, on the amount of the benefits which may be payable to or with respect to an Executive from the Pension Plan.

 

Section 2.4                                       Death Beneficiary ”shall mean the beneficiary designated under this Plan and the SERP.  The designation of a Death Beneficiary may be made, and may be revoked or changed only by

 

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

 

Section 2.5                                       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 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 of an Employer (1) whose Annual Compensation from the Employers for the preceding Plan Year exceeds the dollar limitation described in Code Section 401(a)(17), (2) who is a Participant in the Pension Plan, and (3) who is selected by the Administrator to participate in the Plan.  Once an Employee has satisfied the requirements of an Executive and commenced participation in the Plan, his participation may continue, notwithstanding the fact that his Annual Compensation is reduced below the limitation described in Code Section 401(a)(17), until the Administrator determines, in his sole discretion, that the Employee would fail to satisfy the requirements of a “management or highly compensated employee” under ERISA.

 

Section 2.7                                       Grandfathered Mirror Pension Benefit ” shall mean the portion of an Executive’s Mirror Pension 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 Mirror Pension 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 Mirror Pension Benefit in the form with the maximum value (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 2.8                                       Mirror Savings Plan ” shall mean the Ecolab Mirror Savings Plan, as such plan may be amended from time to time.

 

Section 2.9                                       Mirror Pension Benefit ” shall mean the retirement benefit determined under Article III.

 

Section 2.10                                 Mirror Pre-Retirement Pension Benefit ”  shall mean the pre-retirement benefit determined under Article IV.

 

Section 2.11                                 Non-Grandfathered Mirror Pension Benefit ” shall mean any Mirror Pension Benefit that is not a Grandfathered Mirror Pension Benefit.

 

Section 2.12                                 Plan ” shall mean this Ecolab Mirror Pension Plan, as it may be amended from time to time.

 

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Section 2.13                                 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 Mirror Pension 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 2.14                                 SERP ” shall mean the Ecolab Supplemental Executive Retirement Plan, as in effect from time to time.

 

Section 2.15                                 SERP Benefit ” shall mean an Executive’s benefit accrued under the SERP.

 

Section 2.16                                 Specified Employee ” shall mean “Specified Employee” as defined in the Administrative Document.

 

ARTICLE III

MIRROR PENSION BENEFITS

 

Section 3.1                                       Amount of Mirror Pension Benefits .

 

(1)                                   In General .  Each Executive whose benefits under the Pension Plan payable on or after the Effective Date are reduced due to the Code Limitations shall be entitled to a Mirror Pension Benefit, which shall be determined as hereinafter provided.

 

(2)                                   Standard Mirror Pension Benefits .  The Standard Mirror Pension Benefit shall be a monthly retirement benefit calculated using the final average pay benefit formula specified in Article 4 of the Pension Plan equal to the difference between (a) and (b), where:

 

(a)   =  the amount of the monthly benefit payable to the Executive under the Pension Plan calculated on a single life annuity basis commencing at age 65, determined under the Pension Plan as in effect on the date of the Executive’s termination of employment with the Controlled Group but calculated as if (i) the Pension Plan did not contain the Code Limitations, and (ii) the definition of Annual Compensation under the Pension Plan included the Executive’s deferrals under the Mirror Savings Plan or its predecessor plan; and

 

(b)   =  the amount of the monthly benefit which would be payable to the Executive under the Pension Plan calculated on a single life annuity basis commencing at age 65, determined under the Pension Plan as in effect on the date of the Executive’s termination of employment with the Controlled Group but calculated as if the Executive’s Annual Compensation under the Pension Plan for any year beginning on or after January 1, 2005 equaled 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.

 

(3)                                   Cash Balance Mirror Pension Benefits .  The Administrator shall establish an “Excess Retirement Account” for each Executive who is accruing benefits under the cash balance formula described in Article 6 of the Pension Plan.  As of the end of each calendar year (or at such other time as

 

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a Contribution Credit is made to the Executive’s Retirement Account under the Pension Plan), the Administrator shall credit each Executive’s Excess Retirement Account under this Plan with an amount equal to the difference between (a) and (b) where:

 

(a)   =  the amount that would have been credited to the Executive’s Retirement Account under the Pension Plan if (i) the Pension Plan did not contain the Code Limitations, and (ii) the definition of Annual Compensation under the Pension Plan included the Executive’s deferrals under the Mirror Savings Plan; and

 

(b)   =  the amount which would have been credited to the Executive’s Retirement Account under the Pension Plan, but determined as if the definition of Annual Compensation under the Pension Plan for any year beginning on or after January 1, 2005 equaled the annual compensation limitation under Code Section 401(a)(17) as in effect in the year for which the credit is made pursuant to this Section 3.1(3).

 

The Administrator shall also credit each Executive’s Excess Retirement Account with Interest Credits in accordance with the rules specified in the Pension Plan.

 

(4)                                   Notwithstanding anything in this Section 3.1 to the contrary, in no event, will any Executive’s Mirror Pension Benefit be less than such Executive’s Grandfathered Mirror Pension Benefit.

 

Section 3.2                                       Time of Payment .

 

(1)                                   Grandfathered Mirror Pension Benefit .  The portion of an Executive’s vested Mirror Pension Benefit that is a Grandfathered Mirror Pension Benefit shall be paid or commence to be paid at the same time and under the same conditions as the benefits payable to the Executive under the Pension Plan.  Notwithstanding the foregoing, if payment at such time is prevented due to reasons outside of the Administrator’s control, the vested Mirror Pension Benefits shall commence as soon as practicable after the benefits commence under the Pension Plan, and the first payment hereunder shall include any Mirror Pension Benefits not paid as a result of the delay in payment.

 

(2)                                   Non-Grandfathered Mirror Pension Benefit .  The provisions of this Section 3.2(2) shall apply solely with respect to the portion of any Executive’s vested Mirror Pension Benefit that is a Non-Grandfathered Mirror Pension Benefit.

 

(a)                                   Standard Mirror Pension Benefits .  The Executive’s Standard Mirror Pension 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 Sections 3.2(2)(d), 3.3(2)(d) and 3.3(2)(c) (as applicable).  The amount of any such Standard Mirror Pension Benefit paid before the Executive’s attainment of age 62 shall be actuarially reduced using the Actuarial Factors, as in effect on the date of the Executive’s Separation from Service.

 

(b)                                  Cash Balance Mirror Pension Benefit .  The Executive’s Cash Balance Mirror Pension Benefit shall be paid or commence to be paid on the first day of the third month following the month in which Executive Separates from Service, subject to Sections 3.2(2)(d) and 3.3(2)(d) (as applicable).

 

(c)                                   Certain Transition Distributions to Terminated Executives .  Notwithstanding Section 3.2(2)(a) and 3.2(2)(b) and subject to Section 3.2(2)(d),

 

(i)                                      An Executive who Separated from Service after December 31, 2004 and before December 31, 2008 and has commenced payments of his Grandfathered

 

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Mirror Pension Benefits at any time before December 31, 2008, shall receive his Non-Grandfathered Mirror Pension Benefit, for which the Executive’s Mirror Pension 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, in the same form and at the same time as the Executive’s Grandfathered benefit, subject to Section 3.2(2)(d).  Notwithstanding the foregoing, an Executive’s Cash Balance Benefit shall be paid on March 1, 2009, subject to Section 3.2(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 Grandfathered Mirror Pension Benefits shall receive his Non-Grandfathered Mirror Pension Benefits, for which the Executive’s Mirror Pension Benefit is retroactively adjusted pursuant to Section 1.1 on January 1, 2009, as follows, subject to Section 3.2(2)(d):

 

(A)                               The Executive’s Standard Mirror Pension Benefit shall be paid to the Executive in a single lump sum amount on the later of March 1, 2009 or the date on which the Executive attains age 55.

 

(B)                                 The Executive’s Non-Grandfathered Cash Balance Mirror Pension Benefit credited to the Executive’s Excess Retirement Account under the Plan shall be paid in a single lump sum amount 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 3.2(2)(a), (b) or (c), (ii) the date specified in Section 3.3(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 Mirror Pension 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%).  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).

 

(e)                                   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 be limited or eliminated by application of Code Section 162(m).  In such event, (i) 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; (ii) such delayed payments must be paid either (A) in the first year in which the Company reasonably anticipates the payment to be deductible, or (B) 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 (iii) 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

 

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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.

 

Section 3.3                                       Form of Payment of Mirror Pension Benefits .

 

(1)                                   Grandfathered Mirror Pension Benefit .  The provisions of this Section 3.3(1) shall apply solely with respect to the portion of an Executive’s vested Standard Mirror Pension Benefit that is a Grandfathered Mirror Pension Benefit.

 

(a)                                   In General .  The Standard Mirror Pension Benefit calculated in accordance with Section 3.1(2) shall be payable in the same form and for the same duration as the benefits payable to the Executive under the Pension Plan; provided, however, that if the form of payment of the Standard Mirror Pension Benefit selected by the Executive is not a single life annuity commencing at age 65, the amount of such Benefit shall be adjusted to an amount which results in a Benefit payable which is the Actuarial Equivalent of a single life annuity commencing at age 65. An election by an Executive of a form of payment under the Pension Plan shall be deemed to be an election by such Executive of the form of his Standa


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