Exhibit 10.8.1
RPM, INC.
Deferred Compensation Plan
Master Plan Document
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EFFECTIVE MAY 31, 2002
RPM, INC.
Deferred Compensation Plan
Master Plan Document
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS..............................................................................................1
ARTICLE 2 SELECTION, ENROLLMENT, ELIGIBILITY.......................................................................8
2.1 SELECTION BY COMMITTEE.........................................................................8
2.2 ENROLLMENT REQUIREMENTS........................................................................8
2.3 ELIGIBILITY; COMMENCEMENT OF PARTICIPATION.....................................................9
2.4 TERMINATION OF PARTICIPATION AND/OR DEFERRALS..................................................9
ARTICLE 3 DEFERRAL COMMITMENTS/COMPANY CONTRIBUTION AMOUNTS/COMPANY RESTORATION
MATCHING AMOUNTS/RESTRICTED STOCK AMOUNTS/VESTING/CREDITING/TAXES..............................9
3.1 MINIMUM DEFERRALS..............................................................................9
3.2 MAXIMUM DEFERRAL..............................................................................10
3.3 ELECTION TO DEFER; EFFECT OF ELECTION FORM....................................................11
3.4 WITHHOLDING AND CREDITING OF ANNUAL DEFERRAL AMOUNTS..........................................11
3.5 ROLLOVER AMOUNT...............................................................................11
3.6 ANNUAL STOCK DIVIDEND AMOUNT..................................................................12
3.7 ANNUAL COMPANY CONTRIBUTION AMOUNT............................................................12
3.8 ANNUAL COMPANY RESTORATION MATCHING AMOUNT....................................................13
3.9 ANNUAL RESTRICTED STOCK AMOUNT................................................................13
3.10 VESTING.......................................................................................13
3.11 CREDITING/DEBITING OF ACCOUNT BALANCES AND MERGER ACCOUNTS....................................14
3.12 FICA AND OTHER TAXES..........................................................................17
ARTICLE 4 DEDUCTION LIMITATION....................................................................................18
4.1 DEDUCTION LIMITATION ON BENEFIT PAYMENTS......................................................18
ARTICLE 5 SHORT-TERM PAYOUT; UNFORESEEABLE FINANCIAL EMERGENCIES; WITHDRAWAL
ELECTION......................................................................................18
5.1 SHORT-TERM PAYOUT.............................................................................18
5.2 OTHER BENEFITS TAKE PRECEDENCE OVER SHORT-TERM................................................19
5.3 WITHDRAWAL PAYOUT/SUSPENSIONS FOR UNFORESEEABLE FINANCIAL EMERGENCIES.........................19
5.4 WITHDRAWAL ELECTION...........................................................................19
ARTICLE 6 MERGER ACCOUNT..........................................................................................20
6.1 MERGER ACCOUNT................................................................................20
6.2 VESTING OF MERGER ACCOUNT.....................................................................20
6.3 PAYMENT OF MERGER ACCOUNT.....................................................................21
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ARTICLE 7 RETIREMENT BENEFIT FROM ACCOUNT BALANCE.................................................................21
7.1 RETIREMENT BENEFIT............................................................................21
7.2 PAYMENT OF RETIREMENT BENEFIT.................................................................21
ARTICLE 8 TERMINATION BENEFIT FROM ACCOUNT BALANCE...............................................................22
8.1 TERMINATION BENEFIT...........................................................................22
8.2 PAYMENT OF TERMINATION BENEFIT................................................................22
ARTICLE 9 DISABILITY WAIVER AND BENEFIT FROM ACCOUNT BALANCE.....................................................22
9.1 DISABILITY WAIVER.............................................................................22
9.2 CONTINUED ELIGIBILITY; DISABILITY BENEFIT.....................................................22
ARTICLE 10 SURVIVOR BENEFIT FROM ACCOUNT BALANCE.................................................................23
10.1 SURVIVOR BENEFIT..............................................................................23
10.2 PAYMENT OF SURVIVOR BENEFIT...................................................................23
ARTICLE 11 BENEFICIARY DESIGNATION..............................................................................23
11.1 BENEFICIARY...................................................................................23
11.2 BENEFICIARY DESIGNATION; CHANGE; SPOUSAL CONSENT..............................................23
11.3 ACKNOWLEDGEMENT...............................................................................23
11.4 NO BENEFICIARY DESIGNATION....................................................................23
11.5 DOUBT AS TO BENEFICIARY.......................................................................24
11.6 DISCHARGE OF OBLIGATIONS......................................................................24
ARTICLE 12 LEAVE OF ABSENCE......................................................................................24
12.1 PAID LEAVE OF ABSENCE.........................................................................24
12.2 UNPAID LEAVE OF ABSENCE.......................................................................24
ARTICLE 13 TERMINATION, AMENDMENT OR MODIFICATION................................................................24
13.1 TERMINATION...................................................................................24
13.2 AMENDMENT.....................................................................................25
13.3 PARTICIPATION BY SUBSIDIARIES.................................................................25
13.4 PLAN AGREEMENT................................................................................25
13.5 EFFECT OF PAYMENT.............................................................................26
ARTICLE 14 ADMINISTRATION........................................................................................26
14.1 COMMITTEE DUTIES..............................................................................26
14.2 ADMINISTRATION UPON CHANGE IN CONTROL.........................................................26
14.3 AGENTS........................................................................................27
14.4 BINDING EFFECT OF DECISIONS...................................................................27
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14.5 INDEMNITY OF COMMITTEE AND BENEFITS REVIEW COMMITTEE..........................................27
14.6 EMPLOYER INFORMATION..........................................................................28
ARTICLE 15 OTHER BENEFITS AND AGREEMENTS..........................................................................28
15.1 COORDINATION WITH OTHER BENEFITS..............................................................28
ARTICLE 16 CLAIMS PROCEDURES......................................................................................28
16.1 PRESENTATION OF CLAIM.........................................................................28
16.2 NOTIFICATION OF DECISION......................................................................28
16.3 REVIEW OF A DENIED CLAIM......................................................................29
16.4 DECISION ON REVIEW............................................................................30
16.5 LEGAL ACTION..................................................................................30
ARTICLE 17 TRUST.................................................................................................30
17.1 ESTABLISHMENT OF THE TRUST....................................................................30
17.2 INTERRELATIONSHIP OF THE PLAN AND THE TRUST...................................................30
17.3 DISTRIBUTIONS FROM THE TRUST..................................................................31
ARTICLE 18 MISCELLANEOUS.........................................................................................31
18.1 STATUS OF PLAN................................................................................31
18.2 UNSECURED GENERAL CREDITOR....................................................................31
18.3 EMPLOYER'S LIABILITY..........................................................................31
18.4 NONASSIGNABILITY..............................................................................31
18.5 NOT A CONTRACT OF EMPLOYMENT..................................................................31
18.6 FURNISHING INFORMATION........................................................................32
18.7 TERMS.........................................................................................32
18.8 CAPTIONS......................................................................................32
18.9 GOVERNING LAW.................................................................................32
18.10 NOTICE........................................................................................32
18.11 SUCCESSORS....................................................................................32
18.12 SPOUSE'S INTEREST.............................................................................32
18.13 VALIDITY......................................................................................32
18.14 INCOMPETENT...................................................................................33
18.15 COURT ORDER...................................................................................33
18.16 DISTRIBUTION IN THE EVENT OF TAXATION.........................................................33
18.17 INSURANCE.....................................................................................33
18.18 LEGAL FEES TO ENFORCE RIGHTS AFTER CHANGE IN CONTROL..........................................34
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RPM, INC.
Deferred Compensation Plan
Master Plan Document
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RPM, INC.
DEFERRED COMPENSATION PLAN
Effective May 31, 2002
PURPOSE
The purpose of this Plan is to provide specified benefits to a select
group of management or highly compensated Employees and Directors who contribute
materially to the continued growth, development and future business success of
RPM, Inc., an Ohio corporation, and its subsidiaries, if any, that sponsor this
Plan. This Plan shall be unfunded for tax purposes and for purposes of Title I
of ERISA. This Deferred Compensation Plan supersedes in its entirety the RPM,
Inc. Deferred Compensation Plan (hereinafter, the "Predecessor Plan") for any
and all participants in the Predecessor Plan as of the Effective Date of this
Plan. Any and all balances accrued by participants under the Predecessor Plan
shall be subject to the terms and conditions of this Plan and shall be referred
to as the "Rollover Amount."
ARTICLE 1
DEFINITIONS
For the purposes of this Plan, unless otherwise clearly apparent from
the context, the following phrases or terms shall have the following indicated
meanings:
1.1 "Account Balance" shall mean, with respect to a Participant, a credit
on the records of the Employer equal to the sum of (i) the Deferral
Account balance, (ii) the Company Contribution Account balance, (iii)
the Company Restoration Matching Account balance, (iv) the Restricted
Stock Account balance, and (v) the Stock Dividend Account balance. The
Account Balance shall be a bookkeeping entry only and shall be utilized
solely as a device for the measurement and determination of the amounts
to be paid to a Participant, or his or her designated Beneficiary,
pursuant to this Plan. The Account Balance shall not include a
Participant's Merger Account.
1.2 "Additional Contributions" shall mean the contributions previously made
by DAP Products Inc. to the DAP Plan on behalf of those Participants
whose benefits under any tax-qualified or non-qualified retirement or
deferred compensation plan maintained by DAP Products Inc. were
decreased due to the Participant's Deferral Contributions under the
DAP Plan and credited to the Merger Account.
1.3 "Annual Bonus" shall mean any compensation, in addition to Base Annual
Salary, Special Incentive Plan Amounts, commissions and other incentive
plan amounts, payable to a Participant during a Plan Year under any
Employer's annual bonus plans, excluding stock options.
1.4 "Annual Company Contribution Amount" shall mean, for any one Plan Year,
the amount determined in accordance with Section 3.7.
1.5 "Annual Company Restoration Matching Amount" for any one Plan Year
shall be the amount determined in accordance with Section 3.8.
1.6 "Annual Deferral Amount" shall mean that portion of a Participant's
Base Annual Salary, Annual Bonus, Special Incentive Plan Amounts and
Director Fees that a Participant defers in accordance with Article 3
for any one Plan Year. In the event of a Participant's Retirement,
Disability (if
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Deferred Compensation Plan
Master Plan Document
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deferrals cease in accordance with Section 9.1), death or a
Termination of Employment prior to the end of a Plan Year, such year's
Annual Deferral Amount shall be the actual amount withheld prior to
such event.
1.7 "Annual Installment Method" shall be an annual installment payment over
the number of years selected by the Participant in accordance with this
Plan, calculated as follows: (i) for the first annual installment, the
vested Account Balance of the Participant shall be calculated as of the
close of business on or around the date on which the Participant
Retires, as determined by the Committee in its sole discretion, and
(ii) for remaining annual installments, the vested Account Balance of
the Participant shall be calculated on every applicable anniversary of
the date on which the Participant Retires. Each annual installment
shall be calculated by multiplying this balance by a fraction, the
numerator of which is one and the denominator of which is the remaining
number of annual payments due the Participant. By way of example, if
the Participant elects a ten (10) year Annual Installment Method, the
first payment shall be 1/10 of the vested Account Balance, calculated
as described in this definition. The following year, the payment shall
be 1/9 of the vested Account Balance, calculated as described in this
definition. Shares of Stock that shall be distributable from the
Restricted Stock Account shall be distributable in shares of actual
Stock in the same manner previously described. However, the Committee
may, in its sole discretion, adjust the annual installments in order to
distribute whole shares of actual Stock.
1.8 "Annual Restricted Stock Amount" shall mean, with respect to a
Participant for any one Plan Year, the amount of Restricted Stock
deferred in accordance with Section 3.9 of this Plan, calculated using
the closing price of Stock at the end of the business day closest to
the date such Restricted Stock would otherwise vest, but for the
election to defer. In the event of a Participant's Retirement,
Disability (if deferrals cease in accordance with Section 9.1), death
or a Termination of Employment prior to the end of a Plan Year, such
year's Annual Restricted Stock Amount shall be the actual amount
withheld prior to such event.
1.9 "Annual Stock Dividend Amount" shall mean, for any one Plan Year, the
amount determined in accordance with Section 3.6.
1.10 "Base Annual Salary" shall mean the annual cash compensation relating
to services performed during any Plan Year, excluding bonuses,
commissions, overtime, fringe benefits, stock options, relocation
expenses, incentive payments, non-monetary awards, director fees and
other fees, and automobile and other allowances paid to a Participant
for employment services rendered (whether or not such allowances are
included in the Employee's gross income). Base Annual Salary shall be
calculated before reduction for compensation voluntarily deferred or
contributed by the Participant pursuant to all qualified or
non-qualified plans of any Employer and shall be calculated to include
amounts not otherwise included in the Participant's gross income under
Code Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans
established by any Employer; provided, however, that all such amounts
will be included in compensation only to the extent that had there been
no such plan, the amount would have been payable in cash to the
Employee.
1.11 "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 11, that are entitled
to receive benefits under this Plan upon the death of a Participant.
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Deferred Compensation Plan
Master Plan Document
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1.12 "Beneficiary Designation Form" shall mean the form established from
time to time by the Committee that a Participant completes, signs and
returns to the Committee to designate one or more Beneficiaries.
1.13 "Board" shall mean the board of directors of the Company.
1.14 "Change in Control" shall mean the occurrence, at any time, of any of
the following events:
(a) The Company is merged or consolidated or reorganized into or
with another corporation or other legal person or entity, and
as a result of such merger, consolidation or reorganization
less than a majority of the combined voting power of the
then-outstanding securities of such corporation, person or
entity immediately after such transaction are held in the
aggregate by the holders of Voting Stock immediately prior to
such transaction;
(b) The Company sells or otherwise transfers all or substantially
all of its assets to any other corporation or other legal
person or entity, and less than a majority of the combined
voting power of the then-outstanding securities of such
corporation, person or entity immediately after such sale or
transfer is held in the aggregate by the holders of Voting
Stock immediately prior to such sale or transfer;
(c) There is a report filed on Schedule 13D or Schedule TO (or any
successor schedule, form or report), each as promulgated
pursuant to the Exchange Act, disclosing that any person (as
the term "person" is used in Section 13(d)(3) or Section
14(d)(2) of the Exchange Act) has become the beneficial owner
(as the term "beneficial owner" is defined under Rule l3d-3 or
any successor rule or regulation promulgated under the
Exchange Act) of securities representing 15% or more of the
Voting Power;
(d) The Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange
Act disclosing in response to Form 8-K or Schedule 14A (or any
successor schedule, form or report or item therein) that a
change in control of the Company has or may have occurred or
will or may occur in the future pursuant to any then-existing
contract or transaction; or
(e) If during any period of two consecutive years, individuals,
who at the beginning of any such period, constitute the
Directors cease for any reason to constitute at least a
majority thereof, unless the nomination for election by the
Company's shareholders of each new Director was approved by a
vote of at least two-thirds of the Directors then in office
who were Directors at the beginning of any such period.
Notwithstanding the foregoing provisions of Sections 1.14(c) and (d)
above, a Change in Control shall not be deemed to have occurred for
purposes of this Agreement (i) solely because (A) the Company, (B) a
Subsidiary, or (C) any Company-sponsored employee stock ownership plan
or other employee benefit plan of the Company or any Subsidiary, or any
entity holding shares of Voting Stock for or pursuant to the terms of
any such plan, either files or becomes obligated to file a report or
proxy statement under or in response to Schedule 13D, Schedule TO,
Form 8-K or Schedule 14A (or any successor schedule, form or report or
item therein) under the Exchange Act, disclosing beneficial ownership
by it of shares of Voting Stock or because the Company reports that a
change in control of the Company has or may have occurred or will or
may occur in the future by reason of such beneficial ownership, (ii)
solely because any other person or
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Deferred Compensation Plan
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entity either files or becomes obligated to file a report on Schedule
13D or Schedule TO (or any successor schedule, form or report) under
the Exchange Act, disclosing beneficial ownership by it of shares of
Voting Stock, but only if both (A) the transaction giving rise to such
filing or obligation is approved in advance of consummation thereof by
the Company's Board of Directors and (B) at least a majority of the
Voting Power immediately after such transaction is held in the
aggregate by the holders of Voting Stock immediately prior to such
transaction, or (iii) solely because of a change in control of any
Subsidiary.
Solely for purposes of this definition of Change of Control, the capitalized
terms shall have the following meanings:
"Director" means a member of the Board of Directors of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder, as such law, rules and
regulations may be amended from time to time.
"Subsidiary" means a corporation, company or other entity (a) more than
50 percent of whose outstanding shares or securities (representing the
right to vote for the election of directors or other managing
authority) are, or (b) which does not have outstanding shares or
securities (as may be the case in a partnership, joint venture or
unincorporated association), but more than 50 percent of whose
ownership interest representing the right generally to make decisions
for such other entity is, now or hereafter, owned or controlled,
directly or indirectly, by the Company.
" Voting Power" means, at any time, the total votes relating to the
then-outstanding securities entitled to vote generally in the election
of Directors.
" Voting Stock" means, at any time, the then-outstanding securities
entitled to vote generally in the election of Directors.
1.15 "Claimant" shall have the meaning set forth in Section 16.1.
1.16 "Code" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time.
1.17 "Committee" shall mean the committee described in Article 14.
1.18 "Company" shall mean RPM, Inc., an Ohio corporation, and any successor
to all or substantially all of the Company's assets or business.
1.19 "Company Contribution Account" shall mean (i) the sum of the
Participant's Annual Company Contribution Amounts, plus (ii) amounts
credited as a result of the cancellation of Restricted Stock under the
RPM, Inc. 1997 Restricted Stock Plan where such amounts are to be
credited to the Company Contribution Account pursuant to the terms of
the RPM, Inc. 1997 Restricted Stock Plan, plus (iii) amounts credited
or debited in accordance with all the applicable crediting and debiting
provisions of this Plan that relate to the Participant's Company
Contribution Account, less (iv) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate
to the Participant's Company Contribution Account.
1.20 "Company Restoration Matching Account" shall mean (i) the sum of all of
a Participant's Annual Company Restoration Matching Amounts, plus (ii)
amounts credited in accordance with all the applicable crediting and
debiting provisions of this Plan that relate to the Participant's
Company
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Restoration Matching Account, less (iii) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate
to the Participant's Company Restoration Matching Account.
1.21 "DAP Plan" shall mean the DAP Products, Inc. Supplemental Executive
Retirement Plan and Deferred Compensation Plan.
1.22 "Deduction Limitation" shall mean the limitation on a benefit that may
otherwise be distributable pursuant to the provisions of this Plan, as
set forth in Article 4.
1.23 "Deferral Account" shall mean (i) that portion of a Participant's
Rollover Amount which is represented by the Participant's aggregate
deferral contributions described in Section 6.1 of the Predecessor
Plan, as well as any appreciation (or depreciation) specifically
attributable to such deferral contributions accumulated under the
Predecessor Plan, plus (ii) the sum of all of a Participant's Annual
Deferral Amounts, plus (iii) amounts credited in accordance with all
the applicable crediting and debiting provisions of this Plan that
relate to the Participant's Deferral Account, less (iv) all
distributions made to the Participant or his or her Beneficiary
pursuant to this Plan that relate to his or her Deferral Account.
1.24 "Deferral Contributions" shall mean that portion of a Participant's
compensation, as defined in the DAP Plan, that a Participant previously
deferred in accordance with the terms and provisions of the DAP Plan
and credited to the Merger Account.
1.25 "Director" shall mean any member of the board of directors of any
Employer.
1.26 "Director Fees" shall mean the fees paid by any Employer, including
retainer fees and meetings fees, as compensation for serving on the
board of directors.
1.27 "Disability" shall mean (i) a period of disability during which a
Participant qualifies for permanent disability benefits under the
Participant's Employer's long-term disability plan, or (ii) if a
Participant does not participate in such a plan, or if the
Participant's Employer does not sponsor such a plan or discontinues its
sponsorship of such a plan, a period of disability during which the
Participant is determined to be totally and permanently disabled by the
Social Security Administration.
1.28 "Disability Benefit" shall mean the benefit set forth in Article 9.
1.29 "Effective Date" shall mean, for purposes of this Plan, May 31, 2002.
1.30 "Election Form" shall mean the form established from time to time by
the Committee that a Participant completes, signs and returns to the
Committee to make an election under the Plan.
1.31 "Employee" shall mean a person who is an employee of any Employer.
1.32 "Employer(s)" shall mean the Company and/or any of its subsidiaries
(now in existence or hereafter formed or acquired) that have been
selected by the Board to participate in the Plan and have adopted the
Plan as a sponsor.
1.33 "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as it may be amended from time to time.
1.34 "401(k) Plan" shall mean the RPM, Inc. 401(k) Trust and Plan, adopted
by the Company.
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1.35 "Merger Account" shall mean the Merger Account accumulated by a
Participant under the Predecessor Plan as more fully described in
Article 6. The Merger Account shall be a bookkeeping entry only and
shall be utilized solely as a device for the measurement and
determination of the amounts to be paid to a Participant, or his or her
designated Beneficiary, pursuant to this Plan.
1.36 "Participant" shall mean any Employee or Director (i) who is selected
to participate in the Plan in accordance with Section 2.1, (ii) who
elects to participate in the Plan, (iii) who signs a Plan Agreement, an
Election Form and a Beneficiary Designation Form, (iv) whose signed
Plan Agreement, Election Form and Beneficiary Designation Form are
accepted by the Committee, (v) who commences participation in the Plan,
and (vi) whose Plan Agreement has not terminated. A spouse or former
spouse of a Participant shall not be treated as a Participant in the
Plan or have an account balance under the Plan, even if he or she has
an interest in the Participant's benefits under the Plan as a result of
applicable law or property settlements resulting from legal separation
or divorce.
1.37 "Plan" shall mean the RPM, Inc. Deferred Compensation Plan, which shall
be evidenced by this instrument and by each Plan Agreement, as they may
be amended from time to time.
1.38 "Plan Agreement" shall mean a written agreement, as may be amended from
time to time, which is entered into by and between an Employer and a
Participant. Each Plan Agreement executed by a Participant and the
Participant's Employer shall provide for the entire benefit to which
such Participant is entitled under the Plan; should there be more than
one Plan Agreement, the Plan Agreement bearing the latest date of
acceptance by the Employer shall supersede all previous Plan Agreements
in their entirety and shall govern such entitlement. The terms of any
Plan Agreement may be different for any Participant, and any Plan
Agreement may provide additional benefits not set forth in the Plan or
limit the benefits otherwise provided under the Plan; provided,
however, that any such additional benefits or benefit limitations must
be agreed to by both the Employer and the Participant.
1.39 "Plan Year" shall mean a period beginning on each June 1 and continuing
through May 31; however, the initial Plan Year shall begin on May 31
in order to facilitate the transition from the Predecessor Plan.
1.40 "Related Employment" shall mean the employment of a Participant by an
Employer which is not the Company, provided (i) such employment is
undertaken by the Participant at the request of the Company; (ii)
immediately prior to undertaking such employment the Participant was an
officer or Employee of the Company, or was engaged in Related
Employment as herein defined; and (iii) such employment is recognized
by the Committee, in its sole discretion, as Related Employment.
1.41 "Restricted Stock" shall mean rights to receive unvested shares of
restricted stock selected by the Committee in its sole discretion and
awarded to the Participant under the RPM, Inc. 1997 Restricted Stock
Plan or any other similar stock incentive plan sponsored by the
Company.
1.42 "Restricted Stock Account" shall mean the aggregate value, measured on
any given date, of (i) the number of shares of Restricted Stock
deferred by a Participant as a result of all Annual Restricted Stock
Amounts, plus (ii) the number of shares of Restricted Stock cancelled
under the RPM, Inc. 1997 Restricted Stock Plan where a corresponding
number of shares is to be credited to the Restricted Stock Account
pursuant to the terms of the RPM, Inc. 1997 Restricted Stock
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Plan, plus (iii) the number of additional shares credited as a result
of deemed reinvestment of dividends in accordance with all the
applicable crediting provisions of the RPM, Inc. Stock Unit Fund I that
relate to the Participant's Restricted Stock Account, less (iv) the
number of shares of Restricted Stock previously distributed to the
Participant or his or her Beneficiary pursuant to this Plan. This
portion of the Participant's Account Balance shall only be
distributable in actual shares of Stock.
1.43 "Retirement", "Retire(s)" or "Retired" shall mean, with respect to an
Employee, severance from employment from all Employers for any reason
other than a leave of absence, death or Disability on or after the
earlier of the attainment of (a) age sixty-five (65) or (b) age
fifty-five (55) with five (5) Years of Service; and shall mean with
respect to a Director who is not an Employee, severance of his or her
directorships with all Employers on or after the later of (y) the
attainment of age seventy (70), or (z) in the sole discretion of the
Committee, an age later than age seventy (70). If a Participant is both
an Employee and a Director, Retirement shall not occur until he or she
Retires as both an Employee and a Director, which Retirement shall be
deemed to be a Retirement as a Director; provided, however, that such a
Participant may elect, at least thirteen (13) months prior to
Retirement and in accordance with the policies and procedures
established by the Committee, to Retire for purposes of this Plan at
the time he or she Retires as an Employee, which Retirement shall be
deemed to be a Retirement as an Employee. Notwithstanding the above,
the Committee may, in its sole discretion, deem a Participant, who has
experienced a Termination of Employment, to have Retired for purposes
of this Plan.
1.44 "Retirement Benefit" shall mean the benefit set forth in Article 7.
1.45 "Rollover Amount" shall mean the amount determined in accordance with
Section 3.5.
1.46 "Short-Term Payout" shall mean the payout set forth in Section 5.1.
1.47 "Special Incentive Plan Amounts" shall mean any amounts payable to a
Participant during a Plan Year under any Employer's cash incentive
plans, which have been designated by the Committee for deferral under
this Plan.
1.48 "Stock" shall mean RPM, Inc. authorized common shares (without par
value) or any other equity securities of the Company designated by the
Committee.
1.49 "Supplemental Contributions" shall mean those contributions previously
made by DAP Products, Inc. to the DAP Plan on behalf of certain
Participants for purposes of funding an expected target benefit less
offsets as provided in the DAP Plan and credited to the Merger Account.
1.50 "Stock Dividend Account" shall mean (i) that portion of a Participant's
Rollover Amount, which is represented by the Participant's aggregate
dividends declared on Restricted Stock granted to a Participant and
automatically deferred under the terms of the Predecessor Plan, as well
as any appreciation (or depreciation) specifically attributable to such
dividends, plus (ii) the sum of all of a Participant's Annual Stock
Dividend Amounts plus (iii) amounts credited in accordance with all the
applicable crediting and debiting provisions of this Plan that relate
to the Participant's Stock Dividend Account, less (iv) all
distributions made to the Participant or his or her Beneficiary
pursuant to this Plan that relate to the Participant's Stock Dividend
Account.
1.51 "Survivor Benefit" shall mean the benefit set forth in Article 10.
1.52 "Termination Benefit" shall mean the benefit set forth in Article 8.
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1.53 "Termination of Employment" shall mean the severing of employment with
all Employers, or service as a Director of all Employers, voluntarily
or involuntarily, for any reason other than Retirement, Disability,
death or an authorized leave of absence. If a Participant is both an
Employee and a Director, a Termination of Employment shall occur only
upon the termination of the last position held; provided, however, that
such a Participant may elect, at least thirteen (13) months before
Termination of Employment and in accordance with the policies and
procedures established by the Committee, to be treated for purposes of
this Plan as having experienced a Termination of Employment at the time
he or she ceases employment with an Employer as an Employee.
1.54 "Trust" shall mean one or more trusts established pursuant to that
certain Master Trust Agreement for RPM, Inc. Deferred Compensation
Plan(s), between the Company and the trustee named therein, as amended
from time to time.
1.55 "Unforeseeable Financial Emergency" shall mean an unanticipated
emergency that is caused by an event beyond the control of the
Participant that would result in severe financial hardship to the
Participant resulting from (i) a sudden and unexpected illness or
accident of the Participant or a dependent of the Participant, (ii) a
loss of the Participant's property due to casualty, or (iii) such other
extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant, all as determined in the
sole discretion of the Committee.
1.56 "Years of Service" shall mean the total number of full years in which a
Participant has been (i) employed by one or more Employers or (ii)
employed in Related Employment. For purposes of this definition, a year
of employment shall be a 365 day period (or 366 day period in the case
of a leap year) that, for the first year of employment, commences on
the Employee's date of hiring and that, for any subsequent year,
commences on an anniversary of that hiring date. The Committee shall
make a determination as to whether any partial year of employment shall
be counted as a Year of Service.
ARTICLE 2
SELECTION, ENROLLMENT, ELIGIBILITY
2.1 SELECTION BY COMMITTEE. Participation in the Plan shall be limited to
(i) a select group of management and highly compensated Employees and
Directors of the Employer, as determined by the Committee in its sole
discretion and/or (ii) any individual who was in a select group of
management or highly compensated Employees and/or Directors of the
Employer and who accumulated an account balance under the Predecessor
Plan. From that group, the Committee shall select, in its sole
discretion, Employees and Directors to participate in the Plan.
2.2 ENROLLMENT REQUIREMENTS. As a condition to participation, each selected
Participant shall complete, execute and return to the Committee a Plan
Agreement, an Election Form and a Beneficiary Designation Form, all
within thirty (30) days after he or she is selected to participate in
the Plan. In addition, the Committee shall establish from time to time
such other enrollment requirements as it determines in its sole
discretion are necessary.
2.3 ELIGIBILITY; COMMENCEMENT OF PARTICIPATION. Provided a Participant
selected to participate in the Plan has met all enrollment requirements
set forth in this Plan and required by the Committee, including
returning all required documents to the Committee within the specified
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time period, that Participant shall commence participation in the Plan
on the first day of the month following the month in which the
Participant completes all enrollment requirements; or, at the
discretion of the Committee, the first day eligible. If a Participant
fails to meet all such requirements within the period required, in
accordance with Section 2.2, that Participant shall not be eligible to
participate in the Plan until the first day of the Plan Year following
the delivery to and acceptance by the Committee of the required
documents.
2.4 TERMINATION OF PARTICIPATION AND/OR DEFERRALS. The Committee may reduce
any individual's level of participation including termination of any
individual as a Participant of this Plan, with or without cause, at any
time. In connection with such action, the Committee shall have the
right, in its sole discretion, to (i) terminate any deferral election
the Participant has made for the remainder of the Plan Year in which
the Participant's membership status changes, (ii) prevent the
Participant from making future deferral elections (iii) immediately
distribute the Participant's then vested Account Balance as a
Termination Benefit and terminate the Participant's participation in
the Plan and/or (iv) take such other action as it deems appropriate to
attain the desired level of participation for an individual.
ARTICLE 3
DEFERRAL COMMITMENTS/COMPANY CONTRIBUTION AMOUNTS/COMPANY RESTORATION MATCHING
AMOUNTS/RESTRICTED STOCK AMOUNTS/VESTING/CREDITING/TAXES
3.1 MINIMUM DEFERRALS.
(a) BASE ANNUAL SALARY, ANNUAL BONUS, SPECIAL INCENTIVE PLAN
AMOUNTS AND DIRECTOR FEES. For each Plan Year, a Participant
may elect to defer, as his or her Annual Deferral Amount, Base
Annual Salary, Annual Bonus, Special Incentive Plan Amounts
and/or Director Fees in the following minimum amounts for each
deferral elected:
Base Annual Salary, $5,000 aggregate
Annual Bonus, Special
Incentive Plan
Amounts
Director Fees $0
If an election is made for less than the stated minimum
amounts, or if no election is made, the amount deferred shall
be zero.
(b) ANNUAL RESTRICTED STOCK AMOUNT. For each grant of Restricted
Stock, a Participant may elect to defer, as his or her Annual
Restricted Stock Amount, Restricted Stock in the following
minimum amount:
Restricted Stock 0%
If no election is made, the amount deferred shall be zero.
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(c) SHORT PLAN YEAR. Notwithstanding the foregoing, if a
Participant first becomes a Participant after the first day of
a Plan Year, the minimum Annual Deferral Amount shall be an
amount equal to the minimum set forth above, multiplied by a
fraction, the numerator of which is the number of complete
months remaining in the Plan Year and the denominator of which
is 12.
3.2 MAXIMUM DEFERRAL.
(a) BASE ANNUAL SALARY, ANNUAL BONUS, SPECIAL INCENTIVE PLAN
AMOUNTS AND DIRECTOR FEES. For each Plan Year, a Participant
may elect to defer, as his or her Annual Deferral Amount, Base
Annual Salary, Annual Bonus, Special Incentive Plan Amounts
and/or Director Fees up to the following maximum percentages
for each deferral elected:
Base Annual Salary 90%
Annual Bonus 90%
Special Incentive Plan 90%
Amounts
Director Fees 100%
(b) ANNUAL RESTRICTED STOCK AMOUNT. For each Plan Year, a
Participant may elect to defer, as his or her Annual
Restricted Stock Amount, Restricted Stock in the following
maximum percentage:
Restricted Stock 100%
(c) SHORT PLAN YEAR. Notwithstanding the foregoing, if a
Participant first becomes a Participant after the first day of
a Plan Year, the maximum Annual Deferral Amount (i) with
respect to Base Annual Salary and Director Fees shall be
limited to the amount of compensation not yet earned by the
Participant as of the date the Participant submits a Plan
Agreement and Election Form to the Committee for acceptance,
and (ii) with respect to Annual Bonus and Special Incentive
Plan Amounts shall be limited to those amounts deemed eligible
for deferral, in the sole discretion of the Committee.
3.3 ELECTION TO DEFER; EFFECT OF ELECTION FORM.
(a) FIRST PLAN YEAR. In connection with a Participant's
commencement of participation in the Plan, the Participant
shall make an irrevocable deferral election for the Plan Year
in which the Participant commences participation in the Plan,
along with such other elections as the Committee deems
necessary or desirable under the Plan. For these elections to
be valid, the Election Form must be completed and signed by
the Participant, timely delivered to the Committee (in
accordance with Section 2.2 above) and accepted by the
Committee.
(b) SUBSEQUENT PLAN YEARS. For each succeeding Plan Year, an
irrevocable deferral election for that Plan Year, and such
other elections as the Committee deems necessary or desirable
under the Plan, shall be made by timely delivering to the
Committee, in
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accordance with its rules and procedures, before the end of
the Plan Year preceding the Plan Year for which the election
is made, a new Election Form. If no such Election Form is
timely delivered for a Plan Year, the Annual Deferral Amount
shall be zero for that Plan Year.
(c) RESTRICTED STOCK DEFERRAL. Notwithstanding paragraphs (a) and
(b), for an election to defer Restricted Stock to be valid:
(i) a separate irrevocable Election Form must be completed and
signed by the Participant, with respect to such Restricted
Stock; and (ii) such Election Form must be timely delivered to
and accepted by the Committee in accordance with the
following: (i) for the first Plan Year, a Participant's
Election Form with respect to such Restricted Stock must be
delivered to and accepted by the Committee in accordance with
the deadlines established by the Committee; and (ii) for each
succeeding Plan year, a Participant's Election Form with
respect to Restricted Stock must be timely delivered to and
accepted by the Committee at least six (6) months prior to the
date such Restricted Stock vests under the terms of the RPM,
Inc. 1997 Restricted Stock plan, or any similar stock
incentive plan sponsored by the Company.
3.4 WITHHOLDING AND CREDITING OF ANNUAL DEFERRAL AMOUNTS. For each Plan
Year, the Base Annual Salary portion of the Annual Deferral Amount
shall be withheld from each regularly scheduled Base Annual Salary
payroll in equal amounts (or the total equivalent if necessary to make
adjustments for administrative purposes), as adjusted from time to time
for increases and decreases in Base Annual Salary. The Annual Bonus,
Special Incentive Plan Amounts and/or Director Fees portion of the
Annual Deferral Amount shall be withheld at the time the Annual Bonus,
Special Incentive Plan Amounts or Director Fees are or otherwise would
be paid to the Participant, whether or not this occurs during the Plan
Year itself. Annual Deferral Amounts, if any, shall be credited to a
Participant's Deferral Account at the time such amounts would otherwise
have been paid to the Participant.
3.5 ROLLOVER AMOUNT. With respect to Participants who participated in the
Predecessor Plan, an amount equal to their "account" as set forth in
such Predecessor Plan, valued as of the Effective Date of this Plan,
shall be the Rollover Amount. The Rollover Amount shall be comprised of
(i) elective deferrals accumulated pursuant to Section 6.1 of the
Predecessor Plan, (ii) a Participant's Merger Account accumulated
pursuant to Section 2.15A of the Predecessor Plan, and (iii) any
dividends declared on Restricted Stock granted to a Participant and
automatically deferred under the Predecessor Plan. The portion of a
Participant's Rollover Amount that is attributable to elective
deferrals (i) shall be credited to the Participant's Deferral Account
on the Effective Date of this Plan, and (ii) shall be subject to the
terms and conditions of this Plan. The portion of a Participant's
Rollover Amount that is attributable to a Participant's Merger Account
(i) shall be credited to the Participant's Merger Account on the
Effective Date of this Plan and (ii) shall be subject to the terms and
conditions of this Plan. The portion of a Participant's Rollover Amount
that is attributable to dividends declared on Restricted Stock granted
to a Participant and automatically deferred under the Predecessor Plan
(i) shall be credited to a Participant's Stock Dividend Account on the
Effective Date of this Plan and (ii) shall be subject to the terms and
conditions of this Plan. Any Participant with a Rollover Amount shall
have no right to demand distribution of such amounts other than as
specifically provided for herein; provided, however, that any
"in-service distribution" elections made by the Participant under the
Predecessor Plan shall apply to the Rollover Amount under this Plan.
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3.6 ANNUAL STOCK DIVIDEND AMOUNT. For each Plan Year in which a dividend is
declared and paid on Stock, an Employer shall automatically credit a
Participant's Stock Dividend Account with any stock dividends, cash
dividends or other non-cash dividends that would have been payable on a
Participant's shares of Restricted Stock which have not been deferred
under any plan. The amount so credited to a Participant pursuant to
this Section 3.6 (i) shall be for that Participant the Annual Stock
Dividend Amount, (ii) shall automatically be deemed to be invested in
the RPM, Inc. Stock Unit Fund II Measurement Fund, and (iii) shall be
credited to the Participant's Stock Dividend Account on a date or dates
to be determined by the Committee, in its sole discretion. The amount
credited to the Participant for a particular cash dividend or other
non-cash dividend shall be equal to the fair market value of the
dividend. Dividends payable on shares of Restricted Stock deferred by a
Participant under this Plan shall be credited to the Participant's
Restricted Stock Account in accordance with Section 3.11(c).
3.7 ANNUAL COMPANY CONTRIBUTION AMOUNT.
(a) For each Plan Year, an Employer may be required to credit
amounts to a Participant's Company Contribution Account in
accordance with the RPM, Inc. 1997 Restricted Stock Plan,
employment agreements, or other plans and agreements providing
for contributions to the Annual Company Contribution Account.
Such amounts shall be credited on the date or dates prescribed
by such agreements.
(b) For each Plan Year, an Employer, in its sole discretion, may,
but is not required to, credit any amount it desires to any
Participant's Company Contribution Account under this Plan,
which amount shall be for that Participant the Annual Company
Contribution Amount for that Plan Year. The amount so credited
to a Participant may be smaller or larger than the amount
credited to any other Participant, and the amount credited to
any Participant for a Plan Year may be zero, even though one
or more other Participants receive an Annual Company
Contribution Amount for that Plan Year. The Annual Company
Contribution Amount described in this Section 3.7(b), if any,
shall be credited as of the last day of the Plan Year or as
otherwise provided. If a Participant is not employed by an
Employer as of the last day of a Plan Year other than by
reason of his or her Retirement, Disability or death while
employed, the Annual Company Contribution Amount for that Plan
Year shall be zero or as otherwise provided.
3.8 ANNUAL COMPANY RESTORATION MATCHING AMOUNT. A Participant's Annual
Company Restoration Matching Amount for any Plan Year shall be equal to
(i) the "match" provided in the 401(k) Plan that the Company would have
credited to the Participant on the amount of Base Annual Salary and
Annual Bonus deferred into this Plan for such Plan Year had such Base
Annual Salary and Annual Bonus deferral been contributed to the 401(k)
Plan, to the extent allowable under the limitations applicable to the
401(k) Plan, reduced by (ii) the amount of the "match" the Company
makes to the Participant during such Plan Year under the 401(k) Plan.
The amount so credited to a Participant under this Plan shall be for
that Participant the Annual Company Restoration Matching Amount for
that Plan Year and shall be credited to the Participant's Company
Restoration Matching Account on a date or dates to be determined by the
Committee, in its sole discretion.
3.9 ANNUAL RESTRICTED STOCK AMOUNT. Subject to Section 3.3(c) and any terms
and conditions imposed by the Committee, Participants may elect to
defer, under the Plan, Restricted Stock,
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which amount shall be for that Participant the Annual Restricted Stock
Amount for that Plan Year. The portion of any Restricted Stock deferred
shall, at the time all forfeiture restrictions with respect to
Restricted Stock would otherwise lapse under the terms of the RPM, Inc.
1997 Restricted Stock Plan or any other similar stock incentive plan
sponsored by the Company, but for the election to defer, be reflected
on the books of the Company as an unfunded, unsecured promise to
deliver to the Participant a specific number of actual shares of Stock
in the future.
3.10 VESTING.
(a) A Participant shall at all times be 100% vested in his or her
Deferral Account and Stock Dividend Account.
(b) A Participant shall be vested in his or her Merger Account
only to the extent that the Participant would be vested in
such amounts under the provisions of the Predecessor Plan, as
determined by the Committee in its sole discretion, and shall
continue to vest in accordance with the provisions of the
Predecessor Plan, as more fully described in Section 6.2.
(c) A Participant shall be vested in his or her Company
Contribution Account and Restricted Stock Account or any
Supplemental Contributions in accordance with the vesting
schedule(s) set forth in his or her Plan Agreement, employment
agreement, or any other agreement entered into between the
Participant and his or her Employer. However, amounts credited
to the Company Contribution Account and shares credited to the
Restricted Stock Account as a result of cancellation or
surrender of shares of Restricted Stock granted under the RPM,
Inc. 1997 Restricted Stock Plan shall be fully vested when the
restrictions with respect to the stock cancelled or
surrendered would have otherwise lapsed. If not addressed in
such agreements or plan, a Participant shall vest in his or
her Company Contribution Account in accordance with the
schedule declared by the Committee in its sole discretion.
(d) A Participant shall be vested in his or her Company
Restoration Matching Account only to the extent that the
Participant would be vested in such amounts under the
provisions of the 401(k) Plan, as determined by the Committee
in its sole discretion.
(e) Notwithstanding anything to the contrary contained in this
Section 3.10, in the event of a Change in Control, or upon
a Participant's Retirement, death while employed by an
Employer, or Disability, a Participant's Company Contribution
Account and Company Restoration Matching Account shall
immediately become 100% vested (if it is not already vested in
accordance with the above vesting schedules).
(f) Notwithstanding subsection 3.10(e) above, the vesting
schedule for a Participant's Company Contribution Account and
Company Restoration Matching Account shall not be accelerated
to the extent that the Committee determines that such
acceleration would cause the deduction limitations of Section
280G of the Code to become effective. In the event that all of
a Participant's Company Contribution Account and/or Company
Restoration Matching Account is not vested pursuant to such a
determination, the Participant may request independent
verification of the Committee's calculations with respect to
the application of Section 280G. In such case, the Committee
must provide to the Participant within 15 business days of
such a request an opinion from a nationally recognized
accounting firm selected by the Participant (the "Accounting
Firm"). The
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opinion shall state the Accounting Firm's opinion that any
limitation in the vested percentage hereunder is necessary to
avoid the limits of Section 280G and contain supporting
calculations. The cost of such opinion shall be paid for by
the Company.
(g) Section 3.10(f) shall not prevent the acceleration of the
vesting schedule applicable to a Participant's Company
Contribution Account and Company Restoration Matching Account
for any Participant who is entitled to a "gross-up" payment,
to eliminate the effect of the Code section 4999 excise tax,
pursuant to an employment agreement or other agreement entered
into between the Participant and the Employer.
3.11 CREDITING/DEBITING OF ACCOUNT BALANCES AND MERGER ACCOUNTS. In
accordance with, and subject to, the rules and procedures that are
established from time to time by the Committee, in its sole discretion,
amounts shall be credited or debited to a Participant's Account Balance
and/or Merger Account balance in accordance with the following rules:
(a) MEASUREMENT FUNDS. Subject to the restrictions found in
Section 3.11(c) below, the Participant may elect one or more
of the measurement funds selected by the Committee, in its
sole discretion, which are based on certain mutual funds (the
"Measurement Funds"), for the purpose of crediting or debiting
additional amounts to his or her Account Balance and/or Merger
Account balance. As necessary, the Committee may, in its sole
discretion, discontinue, substitute or add a Measurement Fund.
Each such action will take effect as of the first day of the
first calendar quarter that begins at least thirty (30) days
after the day on which the Committee gives Participants
advance written notice of such change.
(b) ELECTION OF MEASUREMENT FUNDS. Subject to the restrictions
found in Section 3.11(c) below, a Participant, in connection
with his or her initial deferral election in accordance with
Section 3.3(a) above, shall elect, on the Election Form, one
or more Measurement Fund(s) (as described in Section 3.11(a)
above) to be used to determine the amounts to be credited
or debited to his or her Account Balance and/or Merger Account
balance. If a Participant does not elect any of the
Measurement Funds as described in the previous sentence, the
Participant's Account Balance and/or Merger Account balance
shall automatically be allocated into the lowest-risk
Measurement Fund, as determined by the Committee, in its sole
discretion. Subject to the restrictions found in Section
3.11(c) below, the Participant may (but is not required to)
elect, by submitting an Election Form to the Committee that is
accepted by the Committee, to add or delete one or more
Measurement Fund(s) to be used to determine the amounts to be
credited or debited to his or her Account Balance and/or
Merger Account balance, or to change the portion of his or her
Account Balance and/or Merger Account balance allocated to
each previously or newly elected Measurement Fund. If an
election is made in accordance with the previous sentence, it
shall apply as of the first business day deemed reasonably
practicable by the Committee, in its sole discretion, and
shall continue thereafter for each subsequent day in which the
Participant participates in the Plan, unless changed in
accordance with the previous sentence.
(c) RPM, INC. STOCK UNIT FUND I.
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(i) A Participant's Restricted Stock Account will be automatically
allocated to the RPM, Inc. Stock Unit Fund I Measurement Fund.
Participants may not select any other Measurement Fund to be used
to determine the amounts to be credited or debited to their
Restricted Stock Account. Furthermore, no other portion of the
Participant's Account Balance can be either initially allocated
or re-allocated to the RPM, Inc. Stock Unit Fund I. Amounts
allocated to the RPM, Inc. Stock Unit Fund I shall only be
distributable in actual shares of Stock.
(ii) Any stock dividends, cash dividends or other non-cash dividends
that would have been payable on the Stock credited to a
Participant's Restricted Stock Account shall be credited to the
Participant's Restricted Stock Account balance in the form of
additional shares of Stock and shall automatically and
irrevocably be deemed to be re-invested in the RPM, Inc. Stock
Unit Fund I until such amounts are distributed to the
Participant. The number of shares credited to the Participant for
a particular stock dividend shall be equal to (a) the number of
shares of Stock credited to the Participant's Restricted Stock
Account as of the payment date for such dividend in respect of
each share of Stock, multiplied by (b) the number of additional
shares of Stock actually paid as a dividend in respect of each
share of Stock. The number of shares credited to the Participant
for a particular cash dividend or other non-cash dividend shall
be equal to (a) the number of shares of Stock credited to the
Participant's Restricted Stock Account as of the payment date for
such dividend in respect of each share of Stock, multiplied by
(b) the fair market value of the dividend, divided by (c) the
"fair market value" of the Stock on the payment date for such
dividend.
(iii) The number of shares of Stock credited to the Participant's
Restricted Stock Account balance may be adjusted by the
Committee, in its sole discretion, to prevent dilution or
enlargement of a Participant's rights in the event of any
reorganization, reclassification, stock split, or other unusual
corporate transaction or event which affects the value of the
Stock, provided that any such adjustment shall be made taking
into account any crediting of shares of Stock to the Participant
under Section 3.11(c)(ii) above in connection with such
transaction or event.
(iv) For purposes of this Section 3.11(c), "fair market value" shall
mean for any day the closing price of the stock or, in the event
that no trading takes place on such day, the average of the
reported closing bid and asked prices, in either case as reported
on the principal national securities exchange on which the Stock
is listed or admitted to trading.
(d) RPM, INC. STOCK UNIT FUND II.
(i) Subject to the restrictions found in Section 3.11(c), above, a
Participant may allocate or re-allocate any portion of his or her
Account Balance and/or Merger Account balance to the RPM, Inc.
Stock Unit Fund II. In all events, new contributions to the
Participant's Stock Dividend Account shall automatically be
allocated to the RPM, Inc. Stock Unit Fund II. Participants may
re-allocate any
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portion of their Account Balance and/or Merger Account balance
from the RPM, Inc. Stock Unit Fund II to any other Measurement
Fund, at any time.
(ii) The value of a Participant's Account Balance and/or Merger
Account balance that has been allocated to the RPM, Inc. Stock
Unit Fund II may be adjusted by the Committee, in its sole
discretion, to prevent dilution or enlargement of a Participant's
rights in the event of any reorganization, reclassification,
stock split, or other unusual corporate transaction or event
which affects the value of the Stock.
(e) PROPORTIONATE ALLOCATION. In making any election described in Sections
3.11(b) and (d) above, the Participant shall specify on the Election
Form, in increments of one percent (1%), the percentage of his or her
Account Balance and/or Merger Account balance to be allocated to a
Measurement Fund (as if the Participant was making an investment in
that Measurement Fund with that portion of his or her Account Balance
and/or Merger Account balance).
(f) CREDITING OR DEBITING METHOD. The performance of each elected
Measurement Fund (either positive or negative) will be determined by
the Committee, in its reasonable discretion, based on the performance
of the Measurement Funds themselves. A Participant's Account Balance
and/or Merger Account balance shall be credited or debited on a daily
basis based on the performance of each Measurement Fund selected by
the Participant, SUCH PERFORMANCE BEING DETERMINED BY THE COMMITTEE IN
ITS SOLE DISCRETION.
(g) NO ACTUAL INVESTMENT. Notwithstanding any other provision of this Plan
that may be interpreted to the contrary, the Measurement Funds are to
be used for measurement purposes only, and a Participant's election of
any such Measurement Fund, the allocation to his or her Account
Balance and/or Merger Account balance thereto, the calculation of
additional amounts and the crediting or debiting of such amounts to a
Participant's Account Balance and/or Merger Account balance SHALL NOT
be considered or construed in any manner as an actual investment of
his or her Account Balance and/or Merger Account balance in any such
Measurement Fund. In the event that the Company or the Trustee (as
that term is defined in the Trust), in its own discretion, decides to
invest funds in any or all of the investments on which the Measurement
Funds are based, no Participant shall have any rights in or to such
investments themselves. Without limiting the foregoing, a
Participant's Account Balance and/or Merger Account balance shall at
all times be a bookkeeping entry only and shall not represent any
investment made on his or her behalf by the Company or the Trust; the
Participant shall at all times remain an unsecured creditor of the
Company.
3.12 FICA AND OTHER TAXES.
(a) ANNUAL DEFERRAL AMOUNTS. For each plan year in which an Annual
Deferral Amount is being withheld from a Participant, the
Participant's Employer(s) shall withhold from that portion of the
Participant's Base Annual Salary, Annual Bonus and/or Special
Incentive Plan Amounts that are not being deferred, in a manner
determined by the Employer(s), the Participant's share of FICA and
other employment taxes on such Annual Deferral
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Amount. If necessary, the Committee may reduce the Annual Deferral
Amount in order to comply with this Section 3.12.
(b) COMPANY RESTORATION MATCHING ACCOUNT, COMPANY CONTRIBUTION ACCOUNT AND
MERGER ACCOUNT. When a participant becomes vested in a portion of his
or her Company Restoration Matching Account, Company Contribution
Account or Merger Account, the Participant's Employer(s) shall
withhold from the Participant's Base Annual Salary, Annual Bonus
and/or Special Incentive Plan Amounts that are not deferred, in a
manner determined by the Employer(s), the Participant's share of FICA
and other employment taxes. If necessary, the Committee may reduce the
vested portion of the Participant's Company Restoration Matching
Account, Company Contribution Account or Merger Account, as
applicable, in order to comply with this Section 3.12.
(c) ANNUAL STOCK DIVIDEND AMOUNTS. When the Participant's Employer credits
an Annual Stock Dividend Amount to a Participant's Stock Dividend
Account, the Participant's Employer shall withhold from the
Participant's Base Annual Salary, Annual Bonus and/or Special
Incentive Plan Amounts that are not deferred, in a manner determined
by the Employer, the Participant's share of FICA and other employment
taxes. If necessary, the Committee may reduce the Participant's Annual
Stock Dividend Amount in order to comply with this Section 3.10.
(d) ANNUAL RESTRICTED STOCK AMOUNTS. When an Annual Restricted Stock
Amount is withheld from a Participant, the Participant's Employer(s)
shall withhold from that portion of the Participant's Base Annual
Salary, Annual Bonus, Special Incentive Plan Amounts and Restricted
Stock that are not being deferred, in a manner determined by the
Employer(s), the Participant's share of FICA and other employment
taxes on such Annual Restricted Stock Amount. If necessary, the
Committee may reduce the Annual Restricted Stock Amount in order to
comply with this Section 3.12.
(e) DISTRIBUTIONS. The Participant's Employer(s), or in the event that
payments are being made directly by the trustee of the Trust, the
trustee of the Trust, shall withhold from any payments made to a
Participant under this Plan all federal, state and local income,
employment and other taxes required to be withheld by the Employer(s),
or in the event that payments are being made directly by the trustee
of the Trust, the trustee of the Trust, in connection with such
payments, in amounts and in a manner to be determined in the sole
discretion of the Employer(s) and the trustee of the Trust.
ARTICLE 4
DEDUCTION LIMITATION
4.1 DEDUCTION LIMITATION ON BENEFIT PAYMENTS. If an Employer determines in
good faith that there is a reasonable likelihood that any compensation paid
to a Participant for a taxable year of the Employer would not be deductible
by the Employer solely by reason of the limitation under Code Section
162(m), then to the extent deemed necessary by the Employer to ensure that
the entire amount of any distribution to the Participant pursuant to this
Plan is deductible, the Employer may defer all or any portion of a
distribution under this Plan. Any amounts deferred pursuant to this
limitation shall continue to be credited/debited with additional amounts in
accordance with Section 3.11 above, even if such amount is being paid out
in installments. The
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amounts so deferred and amounts credited thereon shall be distributed to
the Participant or his or her Beneficiary (in the event of the
Participant's death) at the earliest possible date, as determined by the
Employer in good faith, on which the deductibility of compensation paid or
payable to the Participant for the taxable year of the Employer during
which the distribution is made will not be limited by Section 162(m), or if
earlier, the effective date of a Change in Control. Notwithstanding
anything to the contrary in this Plan, the Deduction Limitation shall not
apply to any distributions made after a Change in Control.
ARTICLE 5
SHORT-TERM PAYOUT; UNFORESEEABLE FINANCIAL EMERGENCIES;
WITHDRAWAL ELECTION
5.1 SHORT-TERM PAYOUT. In connection with each election to defer an Annual
Deferral Amount, a Participant may irrevocably elect to receive a future
"Short-Term Payout" from the Plan with respect to all or a portion of such
Annual Deferral Amount. The Short-Term Payout shall be a lump sum payment
in an amount that is equal to the portion of the Annual Deferral Amount the
Participant elected to have distributed as a Short-Term Payout plus amounts
credited or debited in the manner provided in Section 3.11 above on that
amount, calculated as of the close of business on or around the date on
which that the Short-Term Payout becomes payable, as determined by the
Committee in its sole discretion. Subject to the other terms and conditions
of this Plan, each Short-Term Payout elected shall be paid out during a
sixty (60) day period commencing immediately after the first day of any
Plan Year designated by the Participant. The Plan Year designated by the
Participant must be at least three Plan Years after the end of the Plan
Year in which the Annual Deferral Amount is actually deferred. By way of
example, if a three year Short-Term Payout is elected for Annual Deferral
Amounts that are deferred in the Plan Year commencing June 1, 2002, the
three year Short-Term Payout would become payable during a sixty (60) day
period commencing June 1, 2006.
In addition, subject to the terms and conditions of this Section 5.1,
Section 5.2 and all other provisions of this Plan, any similar elections
made pursuant to the terms of the Predecessor Plan, shall be deemed to
remain in effect under this Plan. The distribution date selected by a
Participant in connection with such election(s) under the Predecessor Plan
shall remain binding on the parties. The Committee shall, in its
discretion, determine how any amounts deferred under the Predecessor Plan
shall be treated pursuant to the language of Article 5 and the Plan.
5.2 OTHER BENEFITS TAKE PRECEDENCE OVER SHORT-TERM. Should an event occur that
triggers a benefit under Article 7, 8, 9 or 10, any Annual Deferral Amount,
plus amounts credited or debited thereon, that is subject to a Short-Term
Payout election under Section 5.1 shall not be paid in accordance with
Section 5.1 but shall be paid in accordance with the other applicable
Article.
5.3 WITHDRAWAL PAYOUT/SUSPENSIONS FOR UNFORESEEABLE FINANCIAL EMERGENCIES. If
the Participant experiences an Unforeseeable Financial Emergency, the
Participant may petition the Committee (i) to suspend any deferrals
required to be made by such Participant or (ii) to suspend any deferrals
required to be made by such Participant and receive a partial or full
payout from the Plan. The payout shall not exceed the lesser of the
Participant's vested Account Balance and vested Merger Account balance,
excluding the portion of the Account Balance attributable to the
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Restricted Stock Account, calculated as if such Participant were receiving
a Termination Benefit, or the amount reasonably needed to satisfy the
Unforeseeable Financial Emergency. A Participant may not receive a payout
from the Plan to the extent that the Unforeseeable Financial Emergency is
or may be relieved (i) through reimbursement or compensation by insurance
or otherwise, (ii) by liquidation of the Participant's assets, to the
extent the liquidation of such assets would not itself cause severe
financial hardship or (iii) by suspension of deferrals under this Plan. If
the Committee, in its sole discretion, approves a Participant's petition
for suspension, the Participant's deferrals under this Plan shall be
suspended as of the date of such approval. If the Committee, in its sole
discretion, approves a Participant's petition for suspension and payout,
the Participant's deferrals under this Plan shall be suspended as of the
date of such approval and the Participant shall receive a payout from the
Plan within sixty (60) days of the date of such approval.
5.4 WITHDRAWAL ELECTION. A Participant may elect, at any time, to withdraw all
or a portion of his or her vested Account Balance, excluding the portion of
the Account Balance attributable to the Restricted Stock Account. For
purposes of this Section 5.4, the value of a Participant's vested Account
Balance shall be calculated as of the close of business on or around the
date on which receipt of the Participant's election is acknowledged by the
Committee, as determined by the Committee in its sole discretion, less a
withdrawal penalty equal to 10% of the amount withdrawn (the net amount
shall be referred to as the "Withdrawal Amount"). This election can be made
at any time, before or after Retirement or Disability, and whether or not
the Participant is in the process of being paid pursuant to an installment
payment schedule. The Participant shall make this election by giving the
Committee advance written notice of the election in a form determined from
time to time by the Committee. The Participant shall be paid the Withdrawal
Amount within sixty (60) days of his or her election. Once the Withdrawal
Amount is paid, the Participant's participation in the Plan shall be
suspended for the remainder of the Plan Year in which the withdrawal is
elected and for one (1) full Plan Year thereafter.
ARTICLE 6
MERGER ACCOUNT
6.1 MERGER ACCOUNT. With respect to a Participant who participated in the
Predecessor Plan and who maintained a Merger Account under the Predecessor
Plan, an amount equal to his or her Merger Account as set forth in such
Predecessor Plan, valued as of the Effective Date of this Plan, shall be
credited to such Participant's Merger Account under this Plan. The Merger
Account shall be comprised of Deferral Contributions, Additional
Contributions and Supplemental Contributions accumulated under the
Predecessor Plan pursuant to Section 5.2 of such Predecessor Plan.
6.2 VESTING OF MERGER ACCOUNT.
(a) DEFERRAL CONTRIBUTIONS. A Participant shall at all times be 100%
vested in that portion of his or her Merger Account that is
attributable to his or her Deferral Contributions.
(b) ADDITIONAL CONTRIBUTIONS. A Participant shall vest in that portion of
his or her Merger Account that is attributable to his or her
Additional Contributions upon the Participant's completion of five (5)
Years of Vesting Service.
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(c) SUPPLEMENTAL CONTRIBUTIONS. A Participant shall vest in that portion
of his or her Merger Account that is attributable to his or her
Supplemental Contributions upon the Participant's completion of five
(5) Years of Vesting Service.
(d) YEARS OF VESTING SERVICE. For purposes of this Section 6.2, "Years of
Vesting Service" shall mean whole years of service resulting from (i)
service credited to a Participant for purposes of vesting under the
DAP Plan as of December 31, 1999 and (ii) service earned by a
Participant with the Company including service in Related Employment.
In combining service under the DAP Plan and service with the Company,
twelve (12) months of service are required for a Year of Vesting
Service and any resulting number of months less than twelve (12) shall
be disregarded and shall not be used in determining the vested portion
of a Participant's Merger Account.
A Participant shall earn a month of service for each calendar month in
which he or she performs an hour of service for the Company or in
Related Employment. In addition, if, within twelve (12) months from
the date on which a Participant Retires or experiences a Termination
of Employment, a Participant performs an hour of service for the
Company or in Related Employment, such Participant shall receive a
month of service for each month following the Participant's Retirement
or Termination of Employment through the date of service. Furthermore,
if, following a leave of absence of twelve (12) months or less, a
Participant Retires or experiences a Termination of Employment, and
within twelve (12) months from the date on which the Participant's
leave of absence first commenced such Participant performs an hour of
service, the Participant shall receive a month of service for each
month during the Participant's leave of absence. A Participant shall
earn a Year of Vesting Service for each twelve (12) months of service
earned by the Participant.
(e) SERVICE UNDER DAP PLAN. Each Participant who maintains a Merger
Account together with the Years of Vesting Service and months of
vesting service credited to such Participant under the DAP Plan as of
December 31, 1999 is listed at Appendix A.
(f) ACCELERATED VESTING. Notwithstanding anything to the contrary, upon a
Participant's termination on or after the attainment of age sixty-five
(65), the portion of a Participant's Merger Account that is
attributable to his or her Additional Contributions or Supplemental
Contributions shall immediately become 100% vested (if it is not
already vested in accordance with the above vesting schedule).
6.3 PAYMENT OF MERGER ACCOUNT. A Participant's vested Merger Account,
calculated as of the close of business on or around the date on which the
vested Merger Account becomes payable, as determined by the Committee in
its sole discretion, shall be distributed pursuant to the terms of the
Participant's form executed in accordance with the terms of the DAP Plan
unless a subsequent distribution election is made under this Plan. A lump
sum payment shall be made, or installment payments shall commence, no later
than sixty (60) days after the date on which a Participant's Merger Account
becomes payable. If a Participant's vested Merger Account is less than
$40,000 at the time when such Merger Account becomes payable or if a
Participant is required to take a lump sum distribution under the RPM, Inc.
Retirement Plan or the RPM, Inc. 401(k) Plan, such Participant's vested
Merger Account shall be paid in a lump sum regardless of such Participant's
election.
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ARTICLE 7
RETIREMENT BENEFIT FROM ACCOUNT BALANCE
7.1 RETIREMENT BENEFIT. A Participant who Retires shall receive, as a
Retirement Benefit, his or her vested Account Balance, calculated as of the
close of business on or around the date on which the Participant Retires,
as determined by the Committee in its sole discretion.
7.2 PAYMENT OF RETIREMENT BENEFIT. A Participant, in connection with his or her
commencement of participation in the Plan, shall elect on an Election Form
to receive the Retirement Benefit in a lump sum or pursuant to an Annual
Installment Method of up to 10 years. The Participant may change his or her
election to an allowable alternative payout period by submitting a new
Election Form to the Committee, provided that any such Election Form is
submitted to and accepted by the Committee in its sole discretion at least
thirteen (13) months prior to the Participant's Retirement. The Election
Form most recently accepted by the Committee shall govern the payout of the
Retirement Benefit. If a Participant does not make any election with
respect to the payment of the Retirement Benefit or if the Participant's
vested Account Balance is less than $50,000 at the time of his or her
Retirement, then such benefit shall be payable in a lump sum. The lump sum
payment shall be made, or installment payments shall commence, no later
than sixty (60) days after the date on which the Participant Retires.
Remaining installments, if any, shall be paid no later than sixty (60) days
after each anniversary of the date on which the Participant Retires.
ARTICLE 8
TERMINATION BENEFIT FROM ACCOUNT BALANCE
8.1 TERMINATION BENEFIT. A Participant who experiences a Termination of
Employment shall receive a Termination Benefit, which shall be equal to the
Participant's vested Account Balance, calculated as of the close of
business on or around the date on which the Participant experiences a
Termination of Employment, as determined by the Committee in its sole
discretion.
8.2 PAYMENT OF TERMINATION BENEFIT. The Termination Benefit shall be paid to
the Participant in a lump sum payment no later than sixty (60) days after
the date on which the Participant experiences the Termination of
Employment.
ARTICLE 9
DISABILITY WAIVER AND BENEFIT FROM ACCOUNT BALANCE
9.1 DISABILITY WAIVER.
(a) WAIVER OF DEFERRAL. A Participant who is determined to be suffering
from a Disability shall be (i) excused from fulfilling that portion of
the Annual Deferral Amount commitment that would otherwise have been
withheld from a Participant's Base Annual Salary, Annual Bonus,
Special Incentive Plan Amounts and/or Director Fees for the Plan Year
during which the Participant first suffers a Disability, and (ii)
excused from fulfilling any existing unvested Restricted Stock
commitments. During the period of Disability, the Participant shall
not be allowed to make any additional deferral elections, but will
continue to be considered a Participant for all other purposes of this
Plan.
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(b) DEFERRAL FOLLOWING DISABILITY. If a Participant returns to employment,
or service as a Director, with an Employer after a Disability ceases,
the Participant may elect to defer an Annual Deferral Amount and
Annual Restricted Stock Amount for the Plan Year following his or her
return to employment or service and for every Plan Year thereafter
while a Participant in the Plan; provided such deferral elections are
otherwise allowed and an Election Form is delivered to and accepted by
the Committee for each such election in accordance with Section 3.3
above.
9.2 CONTINUED ELIGIBILITY; DISABILITY BENEFIT. A Participant suffering a
Disability shall, for benefit purposes under this Plan, continue to be
considered to be employed, or in the service of an Employer as a Director,
and shall be eligible for (i) an Annual Company Contribution Amount, if
any, credited to such Participant's Company Contribution Account in
accordance with Section 3.7(b), and (ii) the benefits provided for in
Articles 5, 6, 7, 8 or 10 in accordance with the provisions of those
Articles. Notwithstanding the above, the Committee shall have the right to,
in its sole and absolute discretion and for purposes of this Plan only,
deem the Participant to have experienced a Termination of Employment, at
any time after such Participant is determined to be suffering a Disability.
If the Committee elects to exercise such right, the Participant shall
receive a Disability Benefit equal to his or her vested Account Balance in
accordance with Article 8. In the case of a Participant who is otherwise
eligible to Retire, the Committee must deem the Participant to have Retired
for purposes of this Plan only, as soon as practicable after the
Participant is determined to be suffering a Disability. If the Committee
elects to exercise such right, the Participant shall receive a Disability
Benefit equal to his or her vested Account Balance, in accordance with
Article 7.
ARTICLE 10
SURVIVOR BENEFIT FROM ACCOUNT BALANCE
10.1 SURVIVOR BENEFIT. The Participant's Beneficiary(ies) shall receive a
Survivor Benefit upon the Participant's death which will be equal to (i)
the Participant's vested Account Balance, calculated as of the close of
business on or around the date of the Participant's death, as selected by
the Committee in its sole discretion, if the Participant dies prior to his
or her Retirement, Termination of Employment or Disability, or (ii) the
Participant's unpaid Retirement Benefit, calculated as of the close of
business on or around the date of the Participant's death, as selected by
the Committee in its sole discretion, if the Participant dies before his or
her Retirement Benefit is paid in full.
10.2 PAYMENT OF SURVIVOR BENEFIT. The Survivor Benefit shall be paid to the
Participant's Beneficiary(ies) in a lump sum payment no later than sixty
(60) days after the date on which the Committee is provided with proof that
is satisfactory to the Committee of the Participant's death.
ARTICLE 11
BENEFICIARY DESIGNATION
11.1 BENEFICIARY. Each Participant shall have the right, at any time, to
designate his or her Beneficiary(ies) (both primary as well as contingent)
to receive any benefits payable under the Plan to a beneficiary upon the
death of a Participant. The Beneficiary designated under this Plan
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may be the same as or different from the Beneficiary designation under any
other plan of an Employer in which the Participant participates.
11.2 BENEFICIARY DESIGNATION; CHANGE; SPOUSAL CONSENT. A Participant shall
designate his or her Beneficiary by completing and signing the Beneficiary
Designation Form, and returning it to the Committee or its designated
agent. A Participant shall have the right to change a Beneficiary by
completing, signing and otherwise complying with the terms of the
Beneficiary Designation Form and the Committee's rules and procedures, as
in effect from time to time. Upon the acceptance by the Committee of a new
Beneficiary Designation Form, all Beneficiary designations previously filed
shall be canceled. The Committee shall be entitled to rely on the last
Beneficiary Designation Form filed by the Participant and accepted by the
Committee prior to his or her death.
11.3 ACKNOWLEDGMENT. No designation or change in designation of a beneficiary
shall be effective until received and acknowledged in writing by the
Committee or its designated agent.
11.4 NO BENEFICIARY DESIGNATION. If a Participant fails to designate a
Beneficiary as provided in Sections 11.1, 11.2 and 11.3 above or, if all
designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the Participant's
designated Beneficiary shall be deemed to be his or her surviving spouse.
If the Participant has no surviving spouse, the benefits remaining under
the Plan to be paid to a Beneficiary shall be payable to the executor or
personal representative of the Participant's estate.
11.5 DOUBT AS TO BENEFICIARY. If the Committee has any doubt as to the proper
Beneficiary to receive payments pursuant to this Plan, the Committee shall
have the right, exercisable in its discretion, to cause the Participant's
Employer to withhold such payments until this matter is resolved to the
Committee's satisfaction.
11.6 DISCHARGE OF OBLIGATIONS. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge all Employers and the
Committee from all further obligations under this Plan with respect to the
Participant, and that Participant's Plan Agreement shall terminate upon
such full payment of benefits.
ARTICLE 12
LEAVE OF ABSENCE
12.1 PAID LEAVE OF ABSENCE. If a Participant is authorized by the Participant's
Employer for any reason to take a paid leave of absence from the employment
of the Employer, the Participant shall continue to be considered employed
by the Employer and the Annual Deferral Amount and Annual Restricted Stock
Amount shall continue to be withheld during such paid leave of absence in
accordance with Section 3.3.
12.2 UNPAID LEAVE OF ABSENCE. If a Participant is authorized by the
Participant's Employer for any reason to take an unpaid leave of absence
from the employment of the Employer, the Participant shall continue to be
considered employed by the Employer and the Participant shall be excused
from making deferrals until the earlier of the date the leave of absence
expires or the Participant returns to a paid employment status. Upon such
expiration or return, deferrals shall resume for the remaining portion of
the Plan Year in which the expiration or return occurs, based on the
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deferral election, if any, made for that Plan Year. If no election was
made for that Plan Year, no deferral shall be withheld.
ARTICLE 13
TERMINATION, AMENDMENT OR MODIFICATION
13.1 Termination. Each Employer reserves the right to discontinue its
sponsorship of the Plan and/or to terminate the Plan at any time with
respect to any or all of its participating Employees and Directors, by
action of its board of directors. Upon the termination of the Plan with
respect to any Employer, the Plan Agreements of the affected
Participants who are employed by that Employer, or in the service of
that Employer as Directors, shall terminate and their vested Account
Balances shall be determined (i) as if they had experienced a
Termination of Employment on the date of Plan termination; or (ii) if
Plan termination occurs after the date upon which a Participant was
eligible to Retire, then with respect to that Participant as if he or
she had Retired on the date of Plan termination. Such benefits shall be
paid to the Participants as follows: (i) prior to a Change in Control,
if the Plan is terminated with respect to all of its Participants, an
Employer shall have the right, in its sole discretion, and
notwithstanding any elections made by the Participant, to pay such
benefits in a lump sum or pursuant to an Annual Installment Method of
up to 10 years, with amounts credited and debited during the
installment period as provided herein; or (ii) prior to a Change in
Control, if the Plan is terminated with respect to less than all of its
Participants, an Employer shall be required to pay such benefits in a
lump sum; or (iii) after a Change in Control, if the Plan is terminated
with respect to some or all of its Participants, the Employer shall be
required to pay such benefits in a lump sum. The termination of the
Plan shall not adversely affect any Participant or Beneficiary who has
become entitled to the payment of any benefits under the Plan as of the
date of termination; provided however, that the Employer shall have the
right to accelerate installment payments without a premium or
prepayment penalty by paying the vested Account Balance in a lump sum
or pursuant to an Annual Installment Method using fewer years.
13.2 AMENDMENT. Any Employer may, at any time, amend or modify the Plan
in whole or in part with respect to that Employer by the action of its
board of directors or by an individual to whom the Board has delegated
authority to amend this Plan provided, however, that: (i) no amendment
or modification shall be effective to decrease or restrict the value of
a Participant's vested Account Balance in existence at the time the
amendment or modification is made, calculated as if the Participant had
experienced a Termination of Employment as of the effective date of the
amendment or modification or, if the amendment or modification occurs
after the date upon which the Participant was eligible to Retire, the
Participant had Retired as of the effective date of the amendment or
modification, (ii) no amendment or modification of this Section 13.2 or
Section 14.1 of the Plan shall be effective, and (iii) no amendment or
modification shall be effective to change the form or timing of the
payment of a Participant's Merger Account. The amendment or
modification of the Plan shall not affect any Participant or
Beneficiary who has become entitled to the payment of benefits under
the Plan as of the date of the amendment or modification; provided,
however, that the Employer shall have the right to accelerate
installment payments by paying the vested Account Balance in a lump sum
or pursuant to an Annual Installment Method using fewer years.
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13.3 PARTICIPATION BY SUBSIDIARIES. Any subsidiary may adopt this Plan
with the consent of the Company. A subsidiary that adopts this Plan
shall be liable for the payment of any benefit of a Participant under
this Plan that relates to employment or services provided to the
subsidiary by the Participant, and neither the Company nor any other
subsidiary shall have any liability for such benefit. Each subsidiary,
by electing to participate in this Plan, appoints the Company as its
agent and fully empowers the Company to act on its behalf as it may
deem appropriate in maintaining or terminating the Plan. The adoption
by the Company of any amendment to the Plan or the termination of all
or any part of the Plan will constitute and represent, without further
action by any subsidiary, the approval, adoption, ratification, or
confirmation by each subsidiary of such amendment or termination and
each subsidiary shall be bound by such amendment or termination. A
subsidiary may cease participation only upon approval by the Company
and only in accordance with such terms and conditions that may be
required by the Company.
13.4 PLAN AGREEMENT. Despite the provisions of Sections 13.1 and 13.2
above, if a Participant's Plan Agreement contains benefits or
limitations that are not in this Plan document, the Employer may only
amend or terminate such provisions as set forth in the Plan Agreement
and, if not set forth in the Plan Agreement, then only with the consent
of the Participant.
13.5 EFFECT OF PAYMENT. The full payment of the Participant's vested Account
Balance and/or vested Merger Account under Articles 5, 6, 7, 8, 9 or 10
of the Plan shall completely discharge all obligations to a Participant
and his or her designated Beneficiaries under this Plan and the
Participant's Plan Agreement shall terminate.
ARTICLE 14
ADMINISTRATION
14.1 COMMITTEE DUTIES. Except as otherwise provided in this Article 14,
this Plan shall be administered by a Committee which shall consist of
the Board, or such committee as the Board shall appoint. Members of the
Committee may be Participants under this Plan. The Committee shall also
have the discretion and authority to (i) make, amend, interpret, and
enforce all appropriate rules and regulations for the administration of
this Plan and (ii) decide or resolve any and all questions including
interpretations of this Plan, as may arise in connection with the Plan.
Any individual serving on the Committee who is a Participant shall not
vote or act on any matter relating solely to himself or herself. When
making a determination or calculation, the Committee shall be entitled
to rely on information furnished by a Participant or the Company.
14.2 ADMINISTRATION UPON CHANGE IN CONTROL.
(a) COMMITTEE. For purposes of this Plan, the Committee shall be
the "Administrator" at all times prior to the occurrence of a
Change in Control. Upon and after the occurrence of a Change
in Control, the "Administrator" shall be an independent third
party selected by the individual who, immediately prior to
such event, was the Company's Chief Executive Officer or, if
not so identified, the Company's highest ranking officer (the
"Ex-CEO"); provided, however, the Committee, as constituted
immediately prior to a Change in Control, shall continue to
act as the Administrator of this Plan until the date on which
the independent third party selected by the Ex-CEO accepts the
responsibilities of Administrator under this Plan. Upon and
after a Change in Control, the Administrator shall have the
discretionary power to determine all questions arising in
connection with
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the administration of the Plan and the interpretation of the
Plan and Trust except benefit entitlement determinations upon
appeal; provided, however, upon and after the occurrence of a
Change in Control, the Administrator shall have no power to
direct the investment of Plan or Trust assets or select any
investment manager or custodial firm for the Plan or Trust.
Upon and after the occurrence of a Change in Control, the
Company must: (1) pay all reasonable administrative expenses
and fees of the Administrator; (2) indemnify the Administrator
against any costs, expenses and liabilities including, without
limitation, attorney's fees and expenses arising in
connection with the performance of the Administrator
hereunder, except with respect to matters resulting from the
gross negligence or willful misconduct of the Administrator or
its employees or agents; and (3) supply full and timely
information to the Administrator on all matters relating to
the Plan, the Trust, the Participants and their Beneficiaries,
the Account Balances of the Participants, the Participants'
Merger Account balances, the date and circumstances of the
Retirement, Disability, death or Termination of Employment of
the Participants, and such other pertinent information as the
Administrator may reasonably require. Upon and after a Change
in Control, the Administrator may only be terminated (and a
replacement appointed) by the Ex-CEO. Upon and after a Change
in Control, the Administrator may not be terminated by the
Company.
(b) BENEFIT REVIEW COMMITTEE. Upon and after the occurrence of
a Change in Control, the Benefits Review Committee, as
constituted immediately prior to a Change in Control, shall
continue to review denied claims as provided in Section 16.3
of this Plan. In the event any member of the Benefits Review
Committee resigns or is unable to perform the duties of a
member of the Benefits Review Committee, successors to such
members shall be selected by the Ex-CEO. Upon and after a
Change in Control, the Benefits Review Committee shall have
the discretionary power and authority to determine all
questions arising in connection with the review of a denied
claim as provided in Section 16.3. Upon and after the
occurrence of a Change in Control, the Company must: (1) pay
all reasonable administrative expenses and fees of the
Benefits Review Committee; (2) indemnify the Benefits Review
Committee against any costs, expenses and liabilities
including, without limitation, attorney's fees and expenses
arising in connection with the performance of the Benefits
Review Committee hereunder, except with respect to matters
resulting from the gross negligence or willful misconduct of
the Benefits Review Committee or its employees or agents; and
(3) supply full and timely information to the Benefits Review
Committee on all matters relating to the Plan, the Trust, the
Participants and their Beneficiaries, the Account Balances of
the Participants, the Participants' Merger Account balances,
the date and circumstances of the Retirement, Disability,
death or Termination of Employment of the Participants, and
such other pertinent information as the Benefits Review
Committee may reasonably require. Upon and after a Change in
Control, a member of the Benefits Review Committee may not be
removed by the Company but may only be removed (and a
replacement appointed) by the Ex-CEO.
14.3 AGENTS. In the administration of this Plan, the Committee and the
Benefits Review Committee may, from time to time, employ agents and
delegate to them such administrative duties as it sees FIT (including
acting through a duly appointed representative) and may from time to
time consult with counsel who may be counsel to any Employer.
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Deferred Compensation Plan
Master Plan Document
================================================================================
14.4 BINDING EFFECT OF DECISIONS. Unless appealed to the Benefits Review
Committee, the decision or action of the Committee or Administrator
with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the
rules and regulations promulgated hereunder shall be final and
conclusive and binding upon all persons having any interest in the
Plan. If such decision or action is appealed under the provisions of
this Plan, then the decision or action of the Benefits Review Committee
shall be final and conclusive and binding upon all persons having any
interest in the Plan.
14.5 INDEMNITY OF COMMITTEE AND BENEFITS REVIEW COMMITTEE. All employers
shall indemnify and hold harmless the members of the Committee and the
Benefits Review Committee, any Employee to whom the duties of the
Committee or Benefits Review Committee may be delegated, and the
Administrator against any and all claims, losses, damages, expenses or
liabilities arising from any action or failure to act with respect to
this Plan, except in the case of willful misconduct by the Committee,
the Benefits Review Committee any of the members of the Committee or
Benefits Review Committee, any such Employee or the Administrator.
14.6 EMPLOYER INFORMATION. To enable the Committee, the Benefits Review
Committee and/or Administrator to perform its functions, the Company
and each Employer shall supply full and timely information to the
Committee, the Benefits Review Committee and/or Administrator, as the
case may be, on all matters relating to the compensation of its
Participants, the date and circumstances of the Retirement, Disability,
death or Termination of Employment of its Participants, and such other
pertinent information as the Committee or Administrator may reasonably
require.
ARTICLE 15
OTHER BENEFITS AND AGREEMENTS
15.1 COORDINATION WITH OTHER BENEFITS. The benefits provided for a
Participant and Participant's Beneficiary under the Plan are in
addition to any other benefits available to such Participant under any
other plan or program for employees of the Participant's Employer. The
Plan shall supplement and shall not supersede, modify or amend any
other such plan or program except as may otherwise be expressly
provided.
ARTICLE 16
CLAIMS PROCEDURES
16.1 PRESENTATION OF CLAIM. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below as
a "Claimant") may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such
Claimant from the Plan. If such a claim relates to the contents of a
notice received by the Claimant, the claim must be made within sixty
(60) days after such notice was received by the Claimant. All other
claims must be made within 180 days of the date on which the event
that caused the claim to arise occurred. The claim must state with
particularity the determination desired by the Claimant.
16.2 NOTIFICATION OF DECISION. The Committee shall consider a Claimant's
claim within a reasonable time, but no later than ninety (90) days
after receiving the claim. If the Committee determines
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Deferred Compensation Plan
Master Plan Document
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that special circumstances require an extension of time for processing
the claim, written notice of the extension shall be furnished to the
Claimant prior to the termination of the initial ninety (90) day
period. In no event shall such extension exceed a period of ninety (90)
days from the end of the initial period. The extension notice shall
indicate the special circumstances requiring an extension of time and
the date by which the Committee expects to render the benefit
determination. The Committee shall notify the Claimant in writing:
(a) that the Claimant's requested determination has been made, and
that the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in whole
or in part, to the Claimant's requested determination, and
such notice must set forth in a manner calculated to be
understood by the Claimant:
(i) the specific reason(s) for the denial of the claim,
or any part of it;
(ii) specific reference(s) to pertinent provisions of the
Plan upon which such denial was based;
(iii) a description of any additional material or
information necessary for the Claimant to perfect the
claim, and an explanation of why such material or
information is necessary;
(iv) an explanation of the claim review procedure set
forth in Section 16.3 below; and
(v) a statement of the Claimant's right to bring a civil
action under ERISA Section 502(a) following an
adverse benefit determination on review.
16.3 REVIEW OF A DENIED CLAIM. The Board shall appoint the members of a
Benefits Review Committee which shall consist of three (3) or more
members. The Benefits Review Committee shall decide appeals of
application denials as provided in this Section, have such other
discretionary powers and authorities as provided by this Section, and
shall have such other discretionary powers and duties as shall from
time to time be assigned to the Benefits Review Committee by the
Company. Prior to a Change in Control the members of the Benefits
Review Committee shall remain in office at the will of the Board, and
the Board may remove any of said members, from time to time, with or
without cause. A member of the Benefits Review Committee may resign
upon written notice to the remaining member or members of the Benefits
Review Committee and to the Company respectively. The fact that a
person is a prospective Participant, a Participant or a former
Participant shall not disqualify him from acting as a member of the
Benefits Review Committee. In case of the death, resignation or removal
of any member of the Benefits Review Committee, the remaining members
shall act until a successor-member is appointed. Upon request, the
Company shall notify the Committee in writing of the names of the
original members of the Benefits Review Committee, of any and all
changes in the membership of the Benefits Review Committee, of the
member designated as Chairman and the member designated as Secretary,
and of any changes in either office. Until notified of a change, the
Committee shall be protected in assuming that there has been no change
in the membership of the Benefits Review Committee or the designation
of Chairman or of Secretary since the last notification was filed with
it. The Committee shall be under no obligation at any time to inquire
into the membership of the Benefits Review Committee or its officers.
All communications to the Benefits Review Committee shall be addressed
to its Secretary at the address of the
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RPM, INC.
Deferred Compensation Plan
Master Plan Document
================================================================================
Company. On or before sixty (60) days after receiving a notice from the
Committee that a claim has been denied, in whole or in part, a Claimant
(or the Claimant's duly authorized representative) may file with the
Benefits Review Committee a written request for a review of the denial
of the claim. The Claimant (or the Claimant's duly authorized
representative):
(a) may, upon request and free of charge, have reasonable access
to, and copies of, all documents, records and other
information relevant to the claim for benefits;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Benefits Review Committee, in
its sole discretion, may grant.
16.4 DECISION ON REVIEW. The Benefits Review Committee shall render its
decision on review promptly, and no later than sixty (60) days after
the Benefits Review Committee receives the Claimant's written request
for a review of the denial of the claim. If the Benefits Review
Committee determines that special circumstances require an extension of
time for processing the claim, written notice of the extension shall be
furnished to the Claimant prior to the termination of the initial sixty
(60) day period. In no event shall such extension exceed a period of
sixty (60) days from the end of the initial period. The extension
notice shall indicate the special circumstances requiring an extension
of time and the date by which the Benefits Review Committee expects to
render the benefit determination. In rendering its decision, the
Benefits Review Committee shall take into account all comments,
documents, records and other information submitted by the Claimant
relating to the claim, without regard to whether such information was
submitted or considered in the initial benefit determination. The
decision must be written in a manner calculated to be understood by the
Claimant, and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon
which the decision was based;
(c) a statement that the Claimant is entitled to receive, upon
request and free of charge, reasonable access to and copies
of, all documents, records and other information relevant (as
defined in applicable ERISA regulations) to the Claimant's
claim for benefits; and
(d) a statement of the Claimant's right to bring a civil action
under ERISA Section 502(a).
16.5 LEGAL ACTION. A Claimant's compliance with the foregoing provisions of
this Article 16 is a mandatory prerequisite to a Claimant's right to
commence any legal action with respect to any claim for benefits under
this Plan.
ARTICLE 17
TRUST
17.1 ESTABLISHMENT OF THE TRUST. In order to provide assets from which to
fulfill the obligations of the Participants and their beneficiaries
under the Plan, the Company may establish a Trust by a trust agreement
with a third party, the trustee, to which each Employer may, in its
discretion, contribute cash or other property, including securities
issued by the Company, to provide for the benefit payments under the
Plan.
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Deferred Compensation Plan
Master Plan Document
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17.2 INTERRELATIONSHIP OF THE PLAN AND THE TRUST. The provisions of the
Plan and the Plan Agreement shall govern the rights of a Participant to
receive distributions pursuant to the Plan. The provisions of the Trust
shall govern the rights of the Employers, Participants and the
creditors of the Employers to the assets transferred to the Trust. Each
Employer shall at all times remain liable to carry out its obligations
under the Plan.
17.3 DISTRIBUTIONS FROM THE TRUST. Each employer's obligations under the
Plan may be satisfied with Trust assets distributed pursuant to the
terms of the Trust, and any such distribution shall reduce the
Employer's obligations under this Plan.
ARTICLE 18
MISCELLANEOUS
18.1 STATUS OF PLAN. The Plan is intended to be a plan that is not qualified
within the meaning of Code Section 401(a) and that "is unfunded and is
maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees" within the meaning of ERISA Sections 201(2),
301(a)(3) and 401(a)(1). The Plan shall be administered and interpreted
to the extent possible in a manner consistent with that intent.
18.2 UNSECURED GENERAL CREDITOR. Participants and their Beneficiaries,
heirs, successors and assigns shall have no legal or equitable rights,
interests or claims in any property or assets of an Employer. For
purposes of the payment of benefits under this Plan, any and all of an
Employer's assets shall be, and remain, the general, unpledged
unrestricted assets of the Employer. An Employer's obligation under the
Plan shall be merely that of an unfunded and unsecured promise to pay
money in the future.
18.3 EMPLOYER'S LIABILITY. An Employer's liability for the payment of
benefits shall be defined only by the Plan and the Plan Agreement, as
entered into between the Employer and a Participant. An Employer shall
have no obligation to a Participant under the Plan except as expressly
provided in the Plan and his or her Plan Agreement.
18.4 NONASSIGNABILITY. Neither a Participant nor any other person shall have
any right to commute, sell, assign, transfer, pledge, anticipate,
mortgage or otherwise encumber, transfer, hypothecate, alienate or
convey in advance of actual receipt, the amounts, if any, payable
hereunder, or any part thereof, which are, and all rights to which are
expressly declared to be, unassignable and non-transferable. No part of
the amounts payable shall, prior to actual payment, be subject to
seizure, attachment, garnishment or sequestration for the payment of
any debts, judgments, alimony or separate maintenance owed by a
Participant or any other person, be transferable by operation of law in
the event of a Participant's or any other person's bankruptcy or
insolvency or be transferable to a spouse as a result of a property
settlement or otherwise.
18.5 NOT A CONTRACT OF EMPLOYMENT. The terms and conditions of this Plan
shall not be deemed to constitute a contract of employment between any
Employer and the Participant. Such employment is hereby acknowledged to
be an "at will" employment relationship that can be terminated at any
time for any reason, or no reason, with or without cause, and with or
without notice, unless expressly provided in a written employment
agreement. Nothing in this Plan shall be deemed to give a Participant
the right to be retained in the service of any Employer, either as
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Master Plan Document
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an Employee or a Director, or to interfere with the right of any
Employer to discipline or discharge the Participant at any time.
18.6 FURNISHING INFORMATION. A Participant or his or her Beneficiary will
cooperate with the Committee by furnishing any and all information
requested by the Committee and take such other actions as may be
requested in order to facilitate the administration of the Plan and the
payments of benefits hereunder, including but not limited to taking
such physical examinations as the Committee may deem necessary.
18.7 TERMS. Whenever any words are used herein in the masculine, they shall
be construed as though they were in the feminine in all cases where
they would so apply; and whenever any words are used herein in the
singular or in the plural, they shall be construed as though they were
used in the plural or the singular, as the case may be, in all cases
where they would so apply.
18.8 CAPTIONS. The captions of the articles, sections and paragraphs of this
Plan are for convenience only and shall not control or affect the
meaning or construction of any of its provisions.
18.9 GOVERNING LAW. Subject to ERISA, the provisions of this Plan shall be
construed and interpreted according to the internal laws of the State
of Ohio without regard to its conflicts of laws principles.
18.10 NOTICE. Any notice or filing required or permitted to be given to the
Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the address
below:
Janeen B. Kastner
Director of Human Resources & Administration
RPM, Inc.
2628 Pearl Rd.
P.O. Box 777
Medina, OH 44258
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing and hand-delivered,
or sent by mail, to the last known address of the Participant.
18.11 SUCCESSORS. The provisions of this Plan shall bind and inure to the
benefit of the Participant's Employer and its successors and assigns
and the Participant and the Participant's designated Beneficiaries.
18.12 SPOUSE'S INTEREST. The interest in the benefits hereunder of a spouse
of a Participant who has predeceased the Participant shall
automatically pass to the Participant and shall not be transferable by
such spouse in any manner, including but not limited to such spouse's
will, nor shall such interest pass under the laws of intestate
succession.
18.13 VALIDITY. In case any provision of this Plan shall be illegal or
invalid for any reason, said illegality or invalidity shall not affect
the remaining parts hereof, but this Plan shall be construed and
enforced as if such illegal or invalid provision had never been
inserted herein.
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RPM, INC.
Deferred Compensation Plan
Master Plan Document
===============================================================================
18.14 INCOMPETENT. If the Committee determines in its discretion that a
benefit under this Plan is to be paid to a minor, a person declared
incompetent or to a person incapable of handling the disposition of
that person's property, the Committee may direct payment of such
benefit to the guardian, legal representative or person having the care
and custody of such minor, incompetent or incapable person. The
Committee may require proof of minority, incompetence, incapacity or
guardianship, as it may deem appropriate prior to distribution of the
benefit. Any payment of a benefit shall be a payment for the account of
the Participant and the Participant's Beneficiary, as the case may be,
and shall be a complete discharge of any liability under the Plan for
such payment amount.
18.15 COURT ORDER. Upon receipt of a court order in any action in which the
Plan or the Committee has been named as a party, the Committee shall
provide the affected Participant with notice of such court order as
soon as is reasonably practicable. Notwithstanding the notice
requirement set forth in the previous sentence, the Committee is
authorized to make any payments directed by such court order. In
addition, if a court determines that a spouse or former spouse of a
Participant has an interest in the Participant's benefits under the
Plan in connection with a property settlement or otherwise, the
Committee, in its sole discretion, shall have the right,
notwithstanding any election made by a Participant, to immediately
distribute the spouse's or former spouse's interest in the
Participant's benefits under the Plan to that spouse or former spouse.
18.16 DISTRIBUTION IN THE EVENT OF TAXATION.
(a) IN GENERAL. If, for any reason, all or any portion of a
Participant's benefits under this Plan becomes taxable to the
Participant prior to receipt, a Participant may petition the
Committee before a Change in Control, or the trustee of the
Trust after a Change in Control, for a distribution of that
portion of his or her benefit that has become taxable. Upon
the grant of such a petition, which grant shall not be
unreasonably withheld (and, after a Change in Control, shall
be granted), a Participant's Employer shall distribute to the
Participant immediately available funds in an amount equal to
the taxable portion of his or her benefit (which amount shall
not exceed a Participant's unpaid vested Account Balance under
the Plan). If the petition is granted, the tax liability
distribution shall be made within 90 days of the date when the
Participant's petition is granted. Such a distribution shall
affect and reduce the benefits to be paid under this Plan. If,
for any reason, all or any portion of a Participant's benefits
under this Plan becomes taxable to the Participant prior to
receipt, such occurrence will not impact the tax status of any
other benefits under the Plan.
(b) TRUST. If the Trust terminates in accordance with its terms and
benefits are distributed from the Trust to a Participant in
accordance therewith, the Participant's benefits under this
Plan shall be reduced to the extent of such distributions.
18.17 INSURANCE. The Employers, on their own behalf or on behalf of the
trustee of the Trust, and, in their sole discretion, may apply for and
procure insurance on the life of the Participant, in such amounts and
in such forms as the Trust may choose. The Employers or the trustee of
the Trust, as the case may be, shall be the sole owner and beneficiary
of any such insurance. The Participant shall have no interest
whatsoever in any such policy or policies, and at the request of the
Employers shall submit to medical examinations and supply such
information and execute
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Deferred Compensation Plan
Master Plan Document
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such documents as may be required by the insurance company or companies
to whom the Employers have applied for insurance.
18.18 LEGAL FEES TO ENFORCE RIGHTS AFTER CHANGE IN CONTROL. The Company and
each Employer is aware that upon the occurrence of a Change in Control,
the Board or the board of directors of a Participant's Employer (which
might then be composed of new members) or a shareholder of the Company
or the Participant's Employer, or of any successor corporation might
then cause or attempt to cause the Company, the Participant's Employer
or such successor to refuse to comply with its obligations under the
Plan and might cause or attempt to cause the Company or the
Participant's Employer to institute, or may institute, litigation
seeking to deny Participants the benefits intended under the Plan. In
these circumstances, the purpose of the Plan could be frustrated.
Accordingly, if, following a Change in Control, it should appear to any
Participant that the Company, the Participant's Employer or any
successor corporation has failed to comply with any of its obligations
under the Plan or any agreement thereunder or, if the Company, such
Employer or any other person takes any action to declare the Plan void
or unenforceable or institutes any litigation or other legal action
designed to deny, diminish or to recover from any Participant the
benefits intended to be provided, then the Company and the
Participant's Employer irrevocably authorize such Participant to retain
counsel of his or her choice at the expense of the Company and the
Participant's Employer (who shall be jointly and severally liable) to
represent such Participant in connection with the initiation or defense
of any litigation or other legal action, whether by or against the
Company, the Participant's Employer or any director, officer,
shareholder or other person affiliated with the Company, the
Participant's Employer or any successor thereto in any jurisdiction.
IN WITNESS WHEREOF, the Company has signed this Plan document as of May 30,
2002.
"Company"
RPM, Inc., an Ohio corporation
By: /s/ Ronald A. Rice
--------------------------------
Title: Vice President Administration
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