Exhibit 4.3(i)
Adoption of 2017 Restatement
Effective January 1, 2017, the Ecolab Savings Plan and ESOP is amended, in its entirety, to read as set forth in the attached document, entitled “Ecolab Savings Plan and ESOP – 2017 Restatement.”
IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its authorized officers and its corporate seal to be affixed, on the date written below.
Dated: August 18, 2017
| | | | |
| | | | ECOLAB INC. |
| (Seal) | | | |
| | | | |
Attest: | /s/ Michael C. McCormick | | By: | /s/ Daniel J. Schmechel |
| Michael C. McCormick | | | Daniel J. Schmechel |
| Executive Vice President, General Counsel, | | | Chief Financial Officer |
| and Secretary | | | |
ECOLAB SAVINGS PLAN and esop
2017 RESTATEMENT
ECOLAB SAVINGS PLAN and esop
2017 RESTATEMENT
Table of Contents
Page
ARTICLE 1 DESCRIPTION AND PURPOSE1
1.1.Plan Name1
1.2.Plan Description1
1.3.Plan Purposes1
ARTICLE 2 ELIGIBILITY1
2.1.Eligibility1
2.2.Transfer among Participating Employers2
2.3.Multiple Employment2
2.4.Termination or Cessation to be a Qualified Employee2
2.5.Condition of Participation3
2.6.Termination of Participation3
ARTICLE 3 CONTRIBUTIONS3
3.1.Elective Deferral Contributions3
3.2.Catch-Up Contributions5
3.3.Matching Contributions5
3.4.Rollovers6
3.5.Transfer of Accounts7
ARTICLE 4 TRUSTEE’S ACCOUNTS AND VALUATION7
4.1.Establishment of Accounts7
4.2.Valuation and Account Adjustment8
4.3.Allocations Do Not Create Rights8
ARTICLE 5 PARTICIPANT INVESTMENT DIRECTION9
5.1.Establishment of Investment Funds9
5.2.Contribution Investment Directions9
5.3.Transfer Among Investment Funds10
5.4.Investment Direction Responsibility Resides With Participants11
5.5.Ecolab Stock Fund Tenders11
5.6.Voting Ecolab Inc. Stock11
5.7.Special Restrictions12
5.8.Default Investments12
ARTICLE 6 WITHDRAWALS DURING EMPLOYMENT AND LOANS13
6.1.Non-Hardship Withdrawals.13
6.2.Hardship Withdrawals from Elective Deferral Funds13
6.3.Withdrawals from Merged Accounts.15
6.4.Rules for Withdrawals15
6.5.Plan Loans15
6.6.ESOP Dividend Distributions.18
Table of Contents
(continued)
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ARTICLE 7 VESTING AND FORFEITURES19
7.1.Vesting19
7.2.Nalco Plan Vesting20
ARTICLE 8 DISTRIBUTIONS AFTER TERMINATION20
8.1.Distribution Events20
8.2.Form of Distribution.21
8.3.Beneficiary Designation21
8.4.Assignment, Alienation of Benefits22
8.5.Payment in Event of Incapacity23
8.6.Payment Satisfies Claims23
8.7.Disposition if Distributee Cannot Be Located23
8.8.Direct Rollovers23
8.9.Minimum Required Distributions24
ARTICLE 9 CONTRIBUTION LIMITATIONS26
9.1.Elective Deferral Contribution Dollar Limitation26
9.2.Actual Contribution Percentage Limitations26
9.3.Earnings on Excess Contributions27
9.4.Aggregate Defined Contribution Limitations28
9.5.Exclusion of Catch-Up Contributions29
9.6.Administrator’s Discretion29
ARTICLE 10 ADOPTION, AMENDMENT AND TERMINATION29
10.1.Adoption by Affiliated Organizations29
10.2.Authority to Amend and Procedure29
10.3.Authority to Terminate and Procedure30
10.4.Vesting Upon Termination, Partial Termination or Discontinuance of Contributions30
10.5.Distribution Following Termination, Partial Termination or Discontinuance of Contributions30
ARTICLE 11 DEFINITIONS, CONSTRUCTION AND INTERPRETATIONS30
11.1.Account30
11.2.Active Participant31
11.3.Administrator31
11.4.Affiliated Organization31
11.5.After-Tax Savings Contributions31
11.6.After-Tax Savings Contribution Account31
11.7.Before-Tax Savings Contributions31
11.8.Before-Tax Savings Contribution Account31
11.9.Beneficiary32
11.10.Code32
11.11.Company32
Table of Contents
(continued)
Page
11.12.Consent of Spouse32
11.13.Disabled32
11.14.Domestic Partner33
11.15.Elective Deferral Contributions33
11.16.Eligible Earnings33
11.17.Eligible Rollover Distribution.34
11.18.Employee35
11.19.ERISA35
11.20.ESOP35
11.21.ESOP Account35
11.22.Fund35
11.23.Governing Law35
11.24.Headings36
11.25.Highly Compensated Employee.36
11.26.Hour of Service37
11.27.Investment Committee39
11.28.Leased Employee.39
11.29.Limitation Year39
11.30.Loan Account39
11.31.Matching Account39
11.32.Matching Contributions39
11.33.Named Fiduciary39
11.34.Normal Retirement Date39
11.35.Number and Gender40
11.36.Participant40
11.37.Participating Employer40
11.38.Plan40
11.39.Plan Rule40
11.40.Plan Year40
11.41.Profit Sharing Account40
11.42.Profit Sharing Contributions40
11.43.Qualified Employee40
11.44.Required Beginning Date41
11.45.Rollover Account42
11.46.Roth 401(k) Account42
11.47.Roth 401(k) Contribution42
11.48.Section 415 Wages42
11.49.Spouse43
11.50.Termination of Employment43
11.51.Testing Wages43
11.52.Treasury Regulations44
11.53.Trust44
11.54.Trustee44
11.55.Valuation Date44
Table of Contents
(continued)
Page
ARTICLE 12 ADMINISTRATION OF PLAN44
12.1.Administrator and Named Fiduciary44
12.2.Appointment of the Administrator and Appointment and Composition of the Investment Committee44
12.3.Compensation and Expenses45
12.4.Adoption of Rules45
12.5.Investment Committee In General45
12.6.Obligations of the Administrator or Investment Committee45
12.7.Professional Assistance46
12.8.Conflict of Interest46
12.9.Dual Capacity46
12.10.Liability for Breach of Duty by Others46
12.11.Indemnification47
12.12.Benefit Claim Procedure47
12.13.Correction of Errors48
12.14.Reliance on Information49
12.15.Funding Policy49
12.16.Board of Directors Actions49
12.17.Officers49
12.18.Qualified Domestic Relations Order Expenses.50
ARTICLE 13 MISCELLANEOUS50
13.1.Merger, Consolidation, Transfer of Assets50
13.2.Limited Reversion of Fund50
13.3.Top-Heavy Provisions51
13.4.No Employment Rights Created53
13.5.Priority of Trust Agreement54
13.6.Uniformed Service54
13.7.Limitation on Actions55
ECOLAB SAVINGS PLAN and esop
2017 RESTATEMENT
1.1. | Plan Name |
The name of the Plan is the “Ecolab Savings Plan and ESOP.”
1.2. | Plan Description |
The Plan is a single plan consisting of a profit sharing portion and stock bonus portion. The stock bonus portion of the Plan constitutes an employee stock ownership plan within the meaning of Code section 4975(e)(7). Salary reduction cash or deferred contributions and matching contributions are made to the profit sharing portion of the Plan. All amounts invested in the Ecolab Stock Fund are transferred to the stock bonus portion of the Plan. The Plan is intended to qualify under Code section 401(a) and to satisfy the requirements of Code sections 401(k) and 401(m). It will be a safe harbor plan described in Code section 401(k)(12). Notwithstanding the designation of the Plan as a profit sharing plan, a Participating Employer may make contributions to the Plan even though such employer has no current or accumulated earnings and profits.
1.3. | Plan Purposes |
The purposes of the Plan are to promote effort and cooperation on the part of participating employees; to provide a measure of economic security to each such employee by accumulating contributions for distribution upon retirement, as a supplement to other resources then available; and to permit participating employees to share in the profits and growth of the Participating Employer.
2.1. | Eligibility |
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2.2. | Transfer among Participating Employers |
A Participant who transfers from one Participating Employer to another Participating Employer as a Qualified Employee will continue to participate in the Plan as a Qualified Employee of such other Participating Employer. During the Plan Year in which such transfer occurs, the Participant will participate based on his or her separate Eligible Earnings received from each Participating Employer for such Plan Year.
2.3. | Multiple Employment |
A Participant who is simultaneously employed as a Qualified Employee with more than one Participating Employer will participate in the Plan as a Qualified Employee of all such Participating Employers on the basis of his or her separate Eligible Earnings from each such Participating Employer.
2.4. | Termination or Cessation to be a Qualified Employee |
No contribution will be made by or on behalf of a Participant after the Participant
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except for any Participating Employer contribution due on account of the portion of the Plan Year preceding the Participant’s termination or transfer.
2.5. | Condition of Participation |
Each eligible Qualified Employee, as a condition of participation, will be bound by all of the terms and conditions of the Plan and will furnish to the Administrator such pertinent information and execute such instruments as the Administrator may require.
2.6. | Termination of Participation |
A person will cease to be a Participant as of the date on which his or her employment has terminated and all benefits, if any, to which he or she is entitled under this Plan have been distributed.
3.1. | Elective Deferral Contributions |
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3.2. | Catch-Up Contributions |
3.3. | Matching Contributions |
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3.4. | Rollovers |
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3.5. | Transfer of Accounts |
If the accounts (and subaccounts) of an individual who was a participant in the Ecolab Savings Plan and ESOP for Traditional Benefit Employees are transferred to this Plan pursuant to the provisions of such other plan, each transferred account and subaccount will be credited to the corresponding Account and subaccount under this Plan and treated for all purposes as if the Participant had been a Participant in this Plan when the contributions to such account were made. The accounts so transferred will be invested in the same manner as such accounts were invested prior to the transfer.
4.1. | Establishment of Accounts |
The following Accounts will be established and maintained for each Participant in each of the portions of the Plan that constitute a profit sharing plan and the ESOP, a stock bonus plan:
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4.2. | Valuation and Account Adjustment |
As of the close of business on each Valuation Date, each Participant’s Accounts within each investment fund established pursuant to Section 5.1 will be separately adjusted for income, expense, gains and losses of the investment fund since the last prior adjustment in a manner determined by the Administrator to be uniform and equitable.
4.3. | Allocations Do Not Create Rights |
The fact that allocations are made and credited to the Accounts of a Participant will not vest in the Participant any right, title or interest in or to any portion of the Fund except at the time or times and upon the terms and conditions expressly set forth in the Plan. Notwithstanding any allocation or credit to the Account of any Participant, the issuance of any statement to the Participant or the distribution of all or any portion of a Participant’s Account balance, the Administrator may direct the Participant’s Account to be adjusted to the extent necessary to correct any error in such Account, whether caused by a misapplication of any provision of the Plan or otherwise, and may recover from the Participant or the Participant’s Beneficiary the amount of any excess distribution. Any such adjustment will be made within a reasonable time after the error is discovered.
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5.1. | Establishment of Investment Funds |
5.2. | Contribution Investment Directions |
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5.3. | Transfer Among Investment Funds |
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5.4. | Investment Direction Responsibility Resides With Participants |
The Administrator, Investment Committee and Trustee will not have any authority, discretion, responsibility or liability with respect to a Participant's selection of the investment Funds in which his or her Accounts will be invested, the entire authority, discretion and responsibility for, and any results attributable to, the selection among the Funds being that of the Participant.
5.5. | Ecolab Stock Fund Tenders |
Any proceeds from a tender of Ecolab Inc. stock will be allocated among the Accounts of the Participants and Beneficiaries to which the tendered stock was attributable. Such proceeds will be held in a subaccount of the Ecolab Stock Fund and invested in the manner prescribed by Plan Rules.
5.6. | Voting Ecolab Inc. Stock |
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5.7. | Special Restrictions |
Notwithstanding any contrary provision of this Plan, in the event of significant unanticipated changes in the value or character of any investment Fund or of any asset held in a Fund, a change of investment manager, record keeper or trustee, or other similar event, the Investment Committee may, in its discretion, take such action as it deems necessary to prevent inequities, losses to the Plan or Participants or other adverse consequences or for the proper administration of the Plan and Trust, including but not limited to the following:
5.8. | Default Investments |
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6.1. | Non-Hardship Withdrawals. |
6.2. | Hardship Withdrawals from Elective Deferral Funds |
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6.3. | Withdrawals from Merged Accounts. |
6.4. | Rules for Withdrawals |
6.5. | Plan Loans |
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6.6. | ESOP Dividend Distributions. |
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7.1. | Vesting |
Except as provided in Section 7.2, each Participant will have a fully vested, nonforfeitable interest in each of his or her Plan Accounts.
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7.2. | Nalco Plan Vesting |
If the Account of a participant in the Nalco Company Pension and Profit Sharing Plan was not fully vested immediately prior to the merger of such plan into this Plan and such participant was not employed by an Affiliated Organization on the date of such merger, then the unvested portion of such Account:
(a)will become fully vested and nonforfeitable (and will be restored if previously forfeited) if such participant becomes an Employee before experiencing five consecutive Breaks in Service, within the meaning of Section 2.6 of the Nalco Company Pension and Profit Sharing Plan as in effect immediately prior to the Merger Date; and
(b)will be forfeited if such participant does not become an Employee before experiencing five such consecutive Breaks in Service.
8.1. | Distribution Events |
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8.2. | Form of Distribution. |
8.3. | Beneficiary Designation |
for all or any portion of the Participant’s Accounts, such Accounts or portion will be distributed to the Participant’s surviving Spouse or surviving Domestic Partner or, if none, to the representative of the Participant’s estate.
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8.4. | Assignment, Alienation of Benefits |
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8.5. | Payment in Event of Incapacity |
If any person entitled to receive any payment under the Plan is physically, mentally, or legally incapable of receiving or acknowledging receipt of the payment, and no legal representative has been appointed for such person, the Administrator in his discretion may (but will not be required to) cause any sum otherwise payable to such person to be paid to any one or more as may be chosen by the Administrator from the following: the Beneficiaries, if any, designated by such person, the institution maintaining such person, a custodian for such person under the Uniform Transfers to Minors Act of any state or such person’s spouse, children, parents or other relatives by blood or marriage. Any payment so made will be a complete discharge of all liability under the Plan with respect to any such payment.
8.6. | Payment Satisfies Claims |
Any payment to or for the benefit of any Participant, legal representative or Beneficiary in accordance with the provisions of the Plan will, to the extent of such payment, be in full satisfaction of all claims against the Trustee, the Administrator and the Participating Employer, any of whom may require the payee to execute a receipted release as a condition precedent to such payment.
8.7. | Disposition if Distributee Cannot Be Located |
If the Administrator is unable to locate a Participant or Beneficiary to whom a distribution is due, the Participant’s Accounts will continue to be held in the Fund until such time as the Administrator has located the Participant or Beneficiary or the Participant or Beneficiary makes a proper claim for the benefit, as the case may be. If the Administrator is unable to locate a person to whom a distribution is required under Section 8.1(C) or Section 8.9 and distribution cannot be made as an automatic direct rollover, the person’s entire Account will be forfeited as of the date such distribution is required to be made. The Account will be restored and distributed, without any adjustment for interest, earnings or losses, upon a subsequent claim by the person or persons entitled to the Account. A check issued as a distribution or loan that is not cashed within six months after the date of issue will be cancelled, and the amount of the check will, if the payee has an Account balance, be restored to the Account without interest or, if the payee has no Account balance, be forfeited in accordance with this section.
8.8. | Direct Rollovers |
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8.9. | Minimum Required Distributions |
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9.1. | Elective Deferral Contribution Dollar Limitation |
The aggregate amount of Elective Deferral Contributions and other “elective deferrals” (within the meaning of the Code section 402(g)(3)) under any other qualified plan maintained by any Affiliated Organization with respect to a Participant for any taxable year of the Participant may not exceed $15,000 (automatically adjusted for increases in the cost of living in accordance with Treasury Regulations). If the foregoing limitation is exceeded for any taxable year of the Participant, the amount of Elective Deferral Contributions in excess of such limitation, increased by Fund earnings or decreased by Fund losses attributable to the excess, will be returned to the Participant. Such distribution may be made at any time after the excess contributions are received, but not later than April 15 of the taxable year following the taxable year to which such limitation relates. The amount returned to a Participant who has made elective deferrals for the calendar year other than under this Plan or another qualified plan maintained by an Affiliated Organization will, to the extent of such other elective deferrals, be determined in accordance with written allocation instructions received by the Administrator from the Participant not later than March 1 of the taxable year following the taxable year with respect to which the Elective Deferral Contributions were made.
9.2. | Actual Contribution Percentage Limitations |
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9.3. | Earnings on Excess Contributions |
The amount of Fund earnings or losses with respect to the excess amount of contributions returned to a Participant pursuant to the foregoing provisions of this article will be the product of the total
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earnings or losses for the Participant’s Account to which the excess contributions were credited for the Plan Year, multiplied by a fraction, the numerator of which is the excess amount of contributions made on the Participant’s behalf to such Account for the Plan Year, and the denominator of which is the closing balance of such Account for the Plan Year, decreased by the amount of earnings credited to that Account, or increased by the amount of losses debited to that Account, for the Plan Year.
9.4. | Aggregate Defined Contribution Limitations |
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9.5. | Exclusion of Catch-Up Contributions |
Catch-Up Contributions made pursuant to Section 3.2 will be excluded from operation of the limitations of this article.
9.6. | Administrator’s Discretion |
Notwithstanding the foregoing provisions of this article, the Administrator may, in his or her discretion, apply the preceding provisions of this article in any manner permitted by Treasury Regulations that will cause the Plan to satisfy the limitations of the Code incorporated in such sections, and the Administrator’s good faith application of Treasury Regulations will be binding on all Participants and Beneficiaries.
10.1. | Adoption by Affiliated Organizations |
An Affiliated Organization may adopt this Plan and become a Participating Employer with the prior approval of the Administrator by furnishing a certified copy of a resolution of its Board of Directors adopting the Plan. Any adoption of the Plan by an Affiliated Organization, however, must either be authorized by the Board of Directors of the Company in advance or be ratified by such Board prior to the end of the fiscal year of such Affiliated Organization in which it adopts the Plan.
10.2. | Authority to Amend and Procedure |
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10.3. | Authority to Terminate and Procedure |
The Company expects to continue the Plan indefinitely but reserves the right to terminate the Plan in its entirety at any time. Each Participating Employer expects to continue its participation in the Plan indefinitely but reserves the right to cease its participation in the Plan at any time. The Plan will terminate in its entirety or with respect to a particular Participating Employer as of the date specified by the Company or such Participating Employer, as the case may be, to the Trustee in a written notice executed in the manner of an amendment.
10.4. | Vesting Upon Termination, Partial Termination or Discontinuance of Contributions |
Upon termination of the Plan or upon the complete discontinuance of contributions by all Participating Employers, the Accounts of each Participant will, to the extent funded, vest in full. Upon a partial termination of the Plan, the Accounts of each Participant as to whom the Plan has been partially terminated will, to the extent funded, vest in full.
10.5. | Distribution Following Termination, Partial Termination or Discontinuance of Contributions |
After termination or partial termination of the Plan or the complete discontinuance of contributions under the Plan, the Trustee will continue to hold and distribute the Fund at the times and in the manner provided by Article 8 as if such event had not occurred or, if the Administrator so directs in accordance with Treasury Regulations, will distribute to each Participant the entire balance of his or her Accounts.
The definitions and the rules of construction and interpretations set forth in this article will be applied in construing this instrument unless the context otherwise indicates.
11.1. | Account |
An “Account” with respect to a Participant is any or all of the accounts maintained on his or her behalf pursuant to Section 4.1, as the context requires.
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11.2. | Active Participant |
An “Active Participant” is a Participant who is a Qualified Employee.
11.3. | Administrator |
The "Administrator" or "Plan Administrator" of the Plan is the Executive Vice President-Human Resources of the Company or the person to whom administrative duties are delegated pursuant to Section 12.2, as the context requires. Administrator shall have the meaning described in ERISA Section 3(16)(A).
11.4. | Affiliated Organization |
An “Affiliated Organization” is the Company and: any corporation that is a member of a controlled group of corporations (within the meaning of section 1563(a) of the Code without regard to Code sections 1563(a)(4) and 1563(e)(3)(C)) that includes the Company; any trade or business (whether or not incorporated) that is controlled (within the meaning of Code section 414(c)) by the Company; any member of an “affiliated service group” (within the meaning of Code section 414(m)) of which the Company is a member; or any other organization that, together with the Company, is treated as a single employer pursuant to Code section 414(o) and Treasury Regulations; provided, that, for purposes of applying the limitations of Code section 415 in Article 9, Code section 1563(a) will be applied by substituting the phrase “more than 50 percent” for the phrase “at least 80 percent” wherever it appears in such Code section.
11.5. | After-Tax Savings Contributions |
“After-Tax Savings Contributions” are contributions made by Participants on an after-tax basis under prior provisions of the Plan.
11.6. | After-Tax Savings Contribution Account |
The “After Tax Savings Contribution Account” is the Account established under Section 4.1 to evidence a Participant’s After-Tax Savings Contributions.
11.7. | Before-Tax Savings Contributions |
“Before-Tax Savings Contributions” are Elective Deferral Contributions made by Participants pursuant to Section 3.1 that are not Roth 401(k) Contributions.
11.8. | Before-Tax Savings Contribution Account |
The “Before-Tax Savings Contribution Account” is the Account established under Section 4.1 to evidence a Participant’s Before-Tax Savings Contributions. A separate Account attributable to elective deferrals (other than Roth 401(k) Contributions) under a plan merged into this Plan will be treated for distribution purposes as if it were part of the Participant’s Before-Tax Savings Contribution Account and will be applied first to any distribution or loan from such account.
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11.9. | Beneficiary |
A “Beneficiary” is a person designated under the provisions of Section 8.3 as the distributee of benefits payable after the death of a Participant; provided that such a person will not become a Beneficiary, and will have no interest in or rights under the Plan, until the Participant has died. Solely for purposes of hardship withdrawals, a Participant’s Beneficiary is an individual who is designated at the time of the hardship withdrawal as a primary beneficiary to receive part or all of the Participant’s Account at the Participant’s death.
11.10. | Code |
The “Code” or “Internal Revenue Code” is the Internal Revenue Code of 1986, as amended. Any reference to a specific provision of the Code will include a reference to such provision as it may be amended from time to time and to any successor provision.
11.11. | Company |
The “Company” is Ecolab Inc. and any successor.
11.12. | Consent of Spouse |
Whenever the consent of a Participant’s Spouse is required with respect to any act of the Participant, such consent will be deemed to have been obtained only if:
Any such consent by the Participant’s Spouse or such determination by the Administrator that such Spouse’s consent is not required will be effective only with respect to the particular Spouse of the Participant who so consented or with respect to whom such determination was made. Any such consent by the Participant’s Spouse to an act of the Participant under the Plan will be irrevocable with respect to that act.
11.13. | Disabled |
A Participant will be considered to be “Disabled” only if the Administrator determines that, by reason of illness, bodily injury or disease, he or she is entitled to receive disability income benefits under the Ecolab Long Term Disability Plan or, if he or she is not a participant in that plan, under the Social Security Act.
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11.14. | Domestic Partner |
A Participant’s “Domestic Partner” is an individual, other than the Participant’s Spouse, who satisfies one of the following conditions not later than the earlier of the date on which benefits commence and the Participant’s death:
that has not been dissolved or revoked; or
neither the Participant nor such person has revoked such affidavit.
“Elective Deferral Contributions” are Before-Tax Savings Contributions and Roth 401(k) Contributions made by a Participant pursuant to Section 3.1.
11.16. | Eligible Earnings |
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11.17. | Eligible Rollover Distribution. |
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11.18. | Employee |
An “Employee” is an individual who performs services as a common-law employee for a Participating Employer or another Affiliated Organization.
11.19. | ERISA |
“ERISA” is the Employee Retirement Income Security Act of 1974, as amended. Any reference to a specific provision of ERISA will include a reference to such provision as it may be amended from time to time and to any successor provision.
11.20. | ESOP |
The “ESOP” is the portion of the Plan constituting an employee stock ownership plan described in Code section 4975.
11.21. | ESOP Account |
The “ESOP Account” includes all Accounts established pursuant to Section 4.1 to evidence those amounts invested in the Ecolab Stock Fund by Participants.
11.22. | Fund |
The “Fund” is the total of all of the assets of every kind and nature, both principal and income, held in the Trust at any particular time or, if the context so requires, one or more of the investment funds described in Section 5.1.
11.23. | Governing Law |
To the extent that state law is not preempted by provisions of ERISA or any other laws of the United States, this Plan will be administered, construed, and enforced according to the internal, substantive laws of the State of Minnesota, without regard to its conflict of laws rules. In determining the existence of a particular relationship between two individuals, the Administrator will apply principles of Minnesota law.
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11.24. | Headings |
The headings of articles and sections are included solely for convenience. If there exists any conflict between such headings and the text of the Plan, the text will control.
11.25. | Highly Compensated Employee. |
(1)at any time during such Plan Year or the preceding Plan Year, owns or owned (or is considered as owning or having owned within the meaning of Code section 318) more than five percent of the outstanding stock of any Affiliated Organization or stock possessing more than five percent of the total combined voting power of all outstanding stock of any Affiliated Organization; or
(2)during the Plan Year preceding such Plan Year:
(a)received Testing Wages in excess of $80,000 (or such dollar amount, adjusted to reflect increases in the cost of living, as in effect under Code section 414(q)(1)(B) for the calendar year during which the Plan Year in question begins), and
(b)whose Testing Wages exceeded the Testing Wages of at least 80 percent of all employees of the Participating Employer and other Affiliated Organizations, excluding, for purposes of determining the number of employees in such group but not for purposes of determining the specific employees comprising the group, all employees of the Participating Employer and other Affiliated Organizations who:
(i)have completed less than six months of service with the Participating Employer and other Affiliated Organizations;
(ii)normally work fewer than 17½ hours per week for the Participating Employer and other Affiliated Organizations;
(iii)normally work for the Participating Employer and other Affiliated Organizations during not more than six months during any calendar year;
(iv)have not attained age 21; or
(v)except to the extent provided in Treasury Regulations, are members of a collective bargaining unit subject to an agreement with an Affiliated Organization,
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and excluding for purposes of determining both the number of employees in such group and the specific employees comprising the group, all of such employees who are non-resident aliens with no income from sources within the United States.
(B) For purposes of this definition, an “employee” is any individual who:
(1) during the Plan Year for which the determination is being made performs services as a common law employee for a Participating Employer or another Affiliated Organization;
(2) is a self-employed individual treated as an employee pursuant to Code section 401(c)(1); or
(3) is a Leased Employee who is treated as an employee of the Company or another Affiliated Organization pursuant to Code section 414(n)(2) or 414(o)(2).
11.26. | Hour of Service |
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11.27. | Investment Committee |
The "Investment Committee" means the Benefits Finance Committee, or its successor, which is appointed pursuant to Section 12.2.
11.28. | Leased Employee. |
A “Leased Employee” is any person (other than an employee of an Affiliated Organization) who performs services for an Affiliated Organization (or for the Affiliated Organization and related persons determined in accordance with Code Section 414(n)(6)):
11.29. | Limitation Year |
The “Limitation Year” is the Plan Year.
11.30. | Loan Account |
The “Loan Account” is the bookkeeping account established pursuant to Section 6.7(G) to reflect the outstanding balance of any loan to the Participant.
11.31. | Matching Account |
The “Matching Account” is the Account established pursuant to Section 4.1 to evidence a Participant’s Matching Contributions.
11.32. | Matching Contributions |
“Matching Contributions” means contributions made pursuant to Section 3.3.
11.33. | Named Fiduciary |
“Named Fiduciary” shall have the meaning assigned to it in ERISA Section 402(a)(2).
11.34. | Normal Retirement Date |
The “Normal Retirement Date” of a Participant is the date on which he or she attains age 62.
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11.35. | Number and Gender |
Wherever appropriate, the singular number may be read as the plural, the plural may be read as the singular, and the masculine gender may be read as the feminine gender.
11.36. | Participant |
A “Participant” is a current or former Qualified Employee who has satisfied the eligibility requirements of Article 2, following initial hire or rehire, as the case may be, with respect to whom contributions to the Plan have been made and whose Account balances have not yet been fully distributed.
11.37. | Participating Employer |
A “Participating Employer” is the Company and any other Affiliated Organization that has adopted the Plan, or all of them collectively, as the context requires, and their respective successors. An Affiliated Organization will cease to be a Participating Employer upon a termination of the Plan as to its Employees or upon its ceasing to be an Affiliated Organization.
11.38. | Plan |
The “Plan” is that set forth in this instrument as it may be amended from time to time.
11.39. | Plan Rule |
A "Plan Rule" is a rule adopted by the Administrator or the Investment Committee by formal instrument, by pronouncement or by practice. Each Plan Rule will be uniform and nondiscriminatory with respect to similarly situated Employees.
11.40. | Plan Year |
A “Plan Year” is the 12 month period beginning on January 1 of each calendar year and ending on December 31 of such calendar year.
11.41. | Profit Sharing Account |
The “Profit Sharing Account” is the Account established pursuant to Section 4.1 to evidence a Participant’s Profit Sharing Contributions.
11.42. | Profit Sharing Contributions |
“Profit Sharing Contributions” means profit sharing contributions made under prior provisions of the Plan.
11.43. | Qualified Employee |
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11.44. | Required Beginning Date |
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11.45. | Rollover Account |
The “Rollover Account” is the Account established pursuant to Section 4.1 to evidence amounts rolled over from an individual retirement arrangement or another qualified plan.
11.46. | Roth 401(k) Account |
A “Roth 401(k) Account” is the Account established pursuant to Section 4.1 to evidence Roth 401(k) Contributions made on behalf of a Participant. A separate Account attributable to Roth 401(k) Contributions under a plan merged into this Plan will be treated for distribution purposes as if it were part of the Participant’s Roth 401(k) Account and will be applied first to any distribution or loan from such account.
11.47. | Roth 401(k) Contribution |
A “Roth 401(k) Contribution” is an Elective Deferral that is:
(a)designated irrevocably by the Participant at the time of the Elective Deferral election as a Roth 401(k) Contribution; and
(b)treated by the Employer as includible in the Participant’s income at the time the Participant would have received that amount if the Participant had not made an Elective Deferral Contribution election.
11.48. | Section 415 Wages |
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11.49. | Spouse |
A person is the “Spouse” of another if, and only if, such person and the other person became married to each other under the law of any jurisdiction and the marriage has not been legally terminated. A Participant’s “surviving Spouse” is the person who was the Participant’s Spouse at the Participant’s death.
11.50. | Termination of Employment |
For purposes of determining entitlement to a distribution under this Plan, a Participant will be deemed to have terminated employment only if he or she has terminated his or her employment relationship with all Participating Employers and other Affiliated Organizations or if he or she becomes Disabled. Neither transfer of employment among Participating Employers and other Affiliated Organizations nor absence from active service by reason of short-term disability leave or any other leave of absence will constitute a termination of employment. A Participant’s change in status from an Employee to a Leased Employee will not constitute a termination of employment. The following rules will apply notwithstanding the preceding sentences.
11.51. | Testing Wages |
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11.52. | Treasury Regulations |
“Treasury Regulations” mean regulations, rulings, notices and other promulgations issued under the authority of the Secretary of the Treasury that apply to, or may be relied upon in the administration of this Plan.
11.53. | Trust |
The “Trust” is that created by the Company, as grantor, for purposes of implementing benefits under the Plan, and may, as from time to time amended, be referred to as the “Ecolab Savings Trust.”
11.54. | Trustee |
The “Trustee” is the corporation and/or individual or individuals who from time to time is or are the duly appointed and acting trustee or trustees of the Trust.
11.55. | Valuation Date |
A “Valuation Date” is each day on which the Trustee and the New York Stock Exchange are open for business.
12.1. | Administrator and Named Fiduciary |
The Administrator is the Plan Administrator and a Named Fiduciary for all respects other than investment matters. The Investment Committee is a Named Fiduciary with respect to the investment of Plan assets.
The Company's Chief Executive Officer ("CEO") determines the number of members of the Investment Committee, and is responsible for appointing and removing Investment Committee members. If necessary, the CEO decides whether the Administrator or the Investment Committee has jurisdiction over a particular matter. The CEO has the authority to designate other Named Fiduciaries. The CEO shall exercise these powers in writing. An Investment Committee member may resign by following the procedure adopted by that committee. The CEO may remove any member of the Investment Committee at any time and for any reason. The Administrator or any member appointed to the Investment Committee shall automatically cease to hold that position, effective on the date that he or she dies or ceases to be employed by (or otherwise ceases performing services for) the Company or an Affiliated Organization unless the CEO approves otherwise in writing. The CEO, Administrator and Investment Committee may designate in writing other persons to carry out a specified part or parts of its responsibilities hereunder (including the power to designate other persons to carry out a part of such designated responsibility). Any such designation shall be effective when accepted by the designated person.
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12.3. | Compensation and Expenses |
An employee of a Participating Employer or another Affiliated Organization performing administrative or Investment Committee duties in connection with the Plan will receive no compensation from the Fund for such services, but will be entitled to reimbursement from the Fund for all sums reasonably and necessarily expended in the performance of such duties. Any such reimbursement or compensation and all other costs of administering the Plan will be paid by the Trustee from the Fund except to the extent paid by the Participating Employers.
12.4. | Adoption of Rules |
The Administrator and Investment Committee have the discretionary power to make and enforce such Plan Rules as they deem to be required or advisable for the effective administration of the Plan.
12.5. | Investment Committee In General |
12.6. | Obligations of the Administrator or Investment Committee |
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12.7. | Professional Assistance |
The Administrator and Investment Committee may retain such accounting, actuarial, recordkeeping, legal, clerical and other services as may reasonably be required in the administration of the Plan, and may pay reasonable compensation for such services.
12.8. | Conflict of Interest |
If any officer or employee of the Company or an Affiliated Organization, any member of the board of directors of the Company, the Administrator or any member of the Investment Committee to whom authority has been delegated or redelegated hereunder is also a Participant, Beneficiary or alternate payee in the Plan, the individual shall have no authority as such officer, employee, director Administrator or Investment Committee member with respect to any matter specially affecting his or her individual interest hereunder (as distinguished from the interests of all Participants, Beneficiaries or alternate payees or a broad class of Participants, Beneficiaries and alternate payees), all such authority being reserved exclusively to the other officers, employees, directors, Administrator or Investment Committee members as the case may be, to the exclusion of such Participant, Beneficiary or alternate payee, and such Participant, Beneficiary or alternate payee shall act only in his or her individual capacity in connection with any such matter.
12.9. | Dual Capacity |
Any person or group of persons may serve in more than one fiduciary capacity with respect to the Plan (including serving as the Administrator and on the Investment Committee).
12.10. | Liability for Breach of Duty by Others |
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12.11. | Indemnification |
12.12. | Benefit Claim Procedure |
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12.13. | Correction of Errors |
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12.14. | Reliance on Information |
12.15. | Funding Policy |
At least annually, the Investment Committee will determine the Plan’s funding policy.
12.16. | Board of Directors Actions |
For purposes of this Plan, unless the context otherwise requires, the act of the Board of Directors or its delegate will constitute the act of the Company. Any action which is required to be taken by the Board of Directors of the Company or which such Board of Directors is authorized to take, may be taken by any committee of such Board of Directors appointed in accordance with the corporation law of the state in which such corporation is incorporated.
12.17. | Officers |
Any reference to a specific officer of the Company will include a reference to the officer of the Company who succeeds to the relevant functions of such officer if the title or duties of the specific office change.
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12.18. | Qualified Domestic Relations Order Expenses. |
Any expenses incurred by the Administrator in connection with a domestic relations order relating to a Participant will be charged against the Participant's Account. If any part of a Participant's Account is assigned to an alternate payee pursuant to a qualified domestic relations order, the expenses not previously charged to the Participant's Account will, except as the qualified domestic relations order otherwise provides, be charged equally against the Participant's Account and the portion allocated to the alternate payee; provided that if either portion of the Account is insufficient to pay the expense so allocated or has been distributed prior to the time the expense is charged, the insufficiency will be charged against the other portion.
13.1. | Merger, Consolidation, Transfer of Assets |
If this Plan is merged or consolidated with, or its assets or liabilities are transferred to, any other plan, each Participant will be entitled to receive a benefit immediately after such merger, consolidation or transfer (if such other plan were then terminated) that is equal to or greater than the benefit he or she would have been entitled to receive immediately before such merger, consolidation or transfer (if this Plan had then terminated). Any amounts so transferred that were subject to distribution limitations of Code section 401(k)(2)(B) in this Plan will continue to be subject to such limitations in the transferee plan. If any other plan is merged into this Plan, any provisions unique to the Accounts resulting from such merger may be set forth in an exhibit, which will be appended to this instrument. No such transfer will be made unless the Administrator has determined that the other plan will apply the Code section 401(k) distribution restrictions to the transferred 401(k) accounts.
13.2. | Limited Reversion of Fund |
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13.3. | Top-Heavy Provisions |
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13.4. | No Employment Rights Created |
The establishment and maintenance of the Plan neither give any employee a right to continuing employment nor limit the right of a Participating Employer to discharge any employee or otherwise deal with the employee without regard to the effect such action might have on his or her initial or continued participation in the Plan.
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13.5. | Priority of Trust Agreement |
If there is any conflict between the provisions of this instrument and the provisions of the agreement governing the Ecolab Savings Trust, the provisions of the trust agreement will take precedence over the provisions of this instrument.
13.6. | Uniformed Service |
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13.7. | Limitation on Actions |
Notwithstanding any statutory limitations period or conflict of law provision to the contrary, no action with respect to any benefit offered under this Plan may be brought more than one year following the date of mailing or delivery of the decision in the final appeal brought pursuant to the claim and appeal procedure set forth in Section 12.12 of this Plan.
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ECOLAB SAVINGS PLAN AND ESOP
SUPPLEMENT A
SPECIAL PROVISIONS
APPLICABLE TO EMPLOYEES IN PUERTO RICO
(1)Purpose. The purpose of this Supplement A is to comply with the qualification requirements of Section 1081.01(a) and (d) of the Puerto Rico Internal Revenue Code of 2011, as amended (the "PR Code"). The provisions of this Supplement A shall only apply to those Employees who are bona fide residents of the Commonwealth of Puerto Rico or who perform labor or services primarily within the Commonwealth of Puerto Rico, regardless of residence for other purposes (the "Puerto Rico Participants").
(2)Type of Plan. It is the intent of the Company that for Puerto Rico tax purposes the Plan be a profit-sharing plan as defined in Article 1165-1 of the Regulations issued under the PR Code and that it includes a qualified cash or deferred arrangement pursuant to 1081.01(d) of the PR Code.
(3)Affiliated Organization and Employer. The definition of “Affiliated Organization” in Section 11.4 of the Plan will apply fully to this Supplement; provided, that for purposes of PR Code Section 1081.01(a)(3), 1081.01(a)(4), and 1081.01(d), the definition will be applied in a manner that is consistent with PR Code Section 1081.01(a)(14). For purposes of Puerto Rico discrimination testing, the word “Employer” means all corporations, partnerships or other entities that are required to be aggregated with the Company under PR Code Section 1081.01(a)(14).
(4)Eligible Earnings. Eligible Earnings and Testing Wages under the Plan with respect to a Puerto Rico Participant shall be increased by amounts excluded from compensation by reason of an Employee's election to reduce compensation in lieu of benefits under a cash or deferred arrangement under PR Code Section 1081.01(d). Eligible Earnings and Testing Wages for a Puerto Rico Participant under the Plan may not exceed the limitation of PR Code Section 1081.01(a)(12) in effect for any Plan Year. All other provisions in the Plan with respect to Eligible Earnings and Testing Wages shall apply to the Puerto Rico Participants to the extent not prohibited by the PR Code.
(5) Limitation on Before-Tax Contributions. The maximum amount of Before-Tax Contributions made by an Employer on behalf of any Puerto Rico Participant during a calendar year may not exceed the limit in effect for any given taxable year under Section 1081.01(d) of the PR Code (or such other limitation as determined from time to time under the PR Code). This limit shall be applied by aggregating all plans maintained by the Employer that provide for 401(k)/Pre-Tax Contributions under the PR Code.
(6)Highly Compensated Employee. For PR Code purposes, “Highly Compensated Employee” means each Employee who:
(a)during the Plan Year for which the determination is being made was more than a 5% owner or had more than a 5% interest in earnings or capital of the Employer;
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(b)received Compensation during the preceding Plan Year from the Employer in excess of the PR Code Section 1081.01(d)(3)(E)(iii)(III) limit; or
(c)is an officer of the Employer.
(7)Limitations Relating to Before-Tax Contributions. For each Plan Year, in addition to satisfying the nondiscrimination tests as provided in the Plan, the Plan shall also satisfy the Actual Deferral Percentage ("ADP") Test of PR Code Section 1081.01(d)(3)(B). This test must be complied with only taking into consideration Puerto Rico Participants.
In no event shall the ADP of the Highly Compensated Employee Puerto Rico Participants for any calendar year exceed the greater of:
(a)the ADP of all other Puerto Rico Participants for such calendar year multiplied by 1.25; or
(b)the ADP of all other Puerto Rico Participants for such calendar year multiplied by 2.0, provided that the ADP of Highly Compensated Employee Puerto Rico Participants does not exceed that of all other Puerto Rico Participants by more than two percentage points.
The ADP of a group of Puerto Rico Participants for a Plan Year shall be the average of the ratios, calculated separately for each Puerto Rico Participant in such group, of the amount of Puerto Rico Participants' Before-Tax Contributions actually paid to the Trust on behalf of such Puerto Rico Participants for such Plan Year to the Compensation of such Puerto Rico Participants for such Plan Year. If more than one plan providing a cash or deferred arrangement (within the meaning of Section 1081.01(d) of the PR Code) is maintained by the Employer, the ADP of any Highly Compensated Puerto Rico Participant who participates in more than one such plan or arrangement shall be determined as if all such arrangements were a single plan or arrangement. If two or more plans are aggregated for purposes of PR Code Sections 1081.01(a)(3) or (4), such plans shall be aggregated for purposes of determining the ADP of the Puerto Rico Participants as if all such plans were a single plan.
If there are contributions in excess of the limitation described in paragraphs (a) and (b) ("Excess Contributions") (determined under the leveling method specified in the PR Code beginning with the Highly Compensated Employee Puerto Rico Participant with the highest ADP), the Employer may make qualified nonelective contributions, as described in Section (9) of this Supplement for purposes of complying with the PR Code ADP Test.
Notwithstanding any contrary provision of this Supplement, to the extent permitted by the PR Code and its regulations, the Plan Administrator may elect to aggregate all Employees employed by the Employer for purposes of determining compliance by the Plan with the ADP test of PR Code Section 1081.01 and the determination of Highly Compensated Employee Puerto Rico Participants.
(8)Adjustment of a Puerto Rico Participant’s Before-Tax Contributions. The Employer may, in its sole discretion, decrease or suspend the Before-Tax Contributions of any Puerto Rico
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Participant if the Employer deems such decrease or suspension to be necessary to satisfy any of the following:
(a)the limits described in Section (5) of this Supplement; or
(b)the nondiscrimination requirement of Section (7) of this Supplement.
(9)Qualified Nonelective Contributions. The Employer may make nonelective contributions allocated to the Before-Tax Contribution Accounts of those non-Highly Compensated Employee Puerto Rico Participants designated by the Employer at its sole discretion to the extent required to satisfy the requirements of Section (7) of this Supplement as of the last day of the Plan Year for which the contribution was made. In any Plan Year, all or part of the qualified nonelective contributions made with respect to Puerto Rico Participants may be treated as Before-Tax Contributions for purposes of the ADP Test set forth in Section (7) of this Supplement. Such qualified nonelective contributions will not be matched.
In connection with designating the non-Highly Compensated Employee Puerto Rico Participants who will receive a nonelective contribution allocated to their Before-Tax Savings Contribution Account and the amount of such nonelective contribution, the Employer shall contribute an additional amount as a nonelective contribution for the Plan Year which shall be allocated only to non-Highly Compensated Employee Puerto Rico Participants who made or were eligible to make Before-Tax Savings Contributions for such Plan Year, which shall only be allocated if the value of such nonelective contribution is no less than one dollar and shall be allocated in the following manner:
(a)First, to the eligible non-Highly Compensated Employee Puerto Rico Participant with the lowest Eligible Earnings for the Plan Year up to an amount that does not exceed the lesser of the Participant’s applicable limitation under Article 9 of the Plan, or Sections (5) and (12) of this Supplement A; provided, however, that the nonelective contribution allocated to any non-Highly Compensated Employee Puerto Rico Participant shall not exceed the product of that non-Highly Compensated Employee Puerto Rico Participant’s Eligible Earnings and the greater of (1) five percent, and (2) two times the plan’s “representative contribution rate,” as that term is defined in U. S. Treasury Regulation Section 1.401(k)-2(a)(6)(iv)(B).
(b)The remaining nonelective contributions, if any, shall be allocated to the remaining eligible non-Highly Compensated Employee Puerto Rico Participants in the same manner and subject to the same limits specified in Paragraph (a), above, beginning with the non-Highly Compensated Employee Puerto Rico Participant with the next lowest Eligible Earnings for the Plan Year and continuing in ascending order based on Eligible Earnings for the Plan Year until the nonelective contribution has been completely allocated.
(10)Transfer and Rollover Provisions. Transfers or rollovers to the Plan pursuant to Section 4.5 by a Puerto Rico Participant are limited to the total lump-sum distribution from an employee retirement plan that qualifies under both Section 1081.01(a) of the PR Code and under Sections 401(a) and 401(k) of the US Code.
A Puerto Rico Participant or Beneficiary may request, at the time and in the manner prescribed by the Plan Administrator, to have the total lump-sum distribution from the Plan paid directly to a
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"Puerto Rico Eligible Retirement Plan" in a direct rollover. For purposes of this paragraph, the term "Puerto Rico Eligible Retirement Plan" means a qualified trust described in Section 1081.01(a) of the PR Code and an individual retirement account or annuity described in Sections 1081.02(a) and (b) of the PR Code, respectively, that accepts the Puerto Rico Participant's eligible rollover distribution.
(11)Catch-up Contributions. Puerto Rico Participants who have attained age 50 before the close of the Plan Year shall be eligible to make "Catch-up Contributions" in accordance with, and subject to the limitations of, Section 1081.01(d)(7)(C) of the PR Code. Such "Catch-up Contributions" shall not be taken into account for purposes of the provisions of the Plan implementing the required limitations of the provisions of the Plan implementing the required limitations of Section 1081.01(d)(7) of the PR Code. The Plan shall not be treated a failing to satisfy he provisions of the Plan implementing the requirements of PR Code Section 1081.01(a)(3) or 1081.01(d)(3) by reason of making such Catch-up Contributions.
(12)Annual Account Additions. Annual Account Additions for a Puerto Rico Participant may not exceed the lesser of the applicable PR Code Section 1081.01(a)(11)(B)(i) limitation in effect or any given Plan Year or the Puerto Rico Participant’s Testing Wages for that Plan Year. This limitation shall be applied considering all Annual Account Additions to all related defined contribution plans maintained by the Company of an Affiliated Organization in which the Puerto Rico Participant is a participant.
(13)Hardship Withdrawals. Puerto Rico Participants are eligible to make hardship withdrawals for the reasons stated in the Plan only to the extent authorized by the Puerto Rico Department of the Treasury. A Puerto Rico Participant who makes a hardship withdrawal pursuant to the terms of the Plan, (i) shall not be entitled to make Before-Tax Contributions and any other employee contributions for twelve months following the date of receipt of the hardship withdrawal, and (ii) for the taxable year following the year of the hardship withdrawal, the annual limitation imposed by the PR Code on Before-Tax Contributions shall be reduced by the amount of Before-Tax Contributions made in the year of the hardship withdrawal.
(14)Roth 401(k) and ESOP Provisions. The provisions of the Plan relating to Roth 401(k) Contributions and Roth 401(k) Accounts will not apply to Puerto Rico Participants. The provisions of the Plan relating to transfers of Participants’ Accounts to the ESOP will not apply to Puerto Rico Participants.
(15)Payment of Contributions. Contributions to the Plan by the Employer shall be paid to the Trustee not later than the due date for filing the Employer's Puerto Rico income tax return for the taxable year in which such payroll period falls, including any extension thereof.
(16)Plan Merger. Solely with respect to the Puerto Rico Participants, any merger or consolidation of the Plan with, or transfer in whole or in part of the assets and liabilities of the Trust to another trust will be limited to the extent such other plan and trust are qualified under Section 1081.01(a) of the PR Code.
(17)Plan Termination or Discontinuance of Contributions. Notwithstanding any provision of the Plan to the contrary, the Trustee shall not be required to make any distribution from the Trust
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to a Puerto Rico Participant in the event the Plan is terminated, until such time as the Puerto Rico Department of the Treasury shall have determined in writing that such termination will not adversely affect the prior qualification of the Plan under the PR Code.
(18)Governing Law. With respect to the Puerto Rico Participants and the Employer engaged in business in Puerto Rico, the Plan will be governed and construed according to the PR Code, where such law is not in conflict with the applicable federal laws.
(19)Use of Terms. All terms and provisions of the Plan shall apply to this Supplement, except that where the terms and provisions of the Plan and this Supplement conflict, the terms and provisions of this Supplement shall govern when applied to any Puerto Rico Participant.
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