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EXHIBIT 10.10
DEFERRED COMPENSATION AGREEMENT
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As of ______________, 19__, RPM, INC., an Ohio corporation
(the "Company") and ____________________, a Director of the Company (the
"Director"), hereby agree as follows:
I. PURPOSE - The purpose of this Agreement is to
establish a Deferred Compensation Plan (the "Plan") for the
Director, pursuant to which the Director's cash compensation
for services to the Company shall be credited to the
Director, either as a cash allotment or a stock allotment,
as provided in Section VI hereof, and payment thereof shall
be deferred until distribution as provided in Section IX
hereof.
II. PARTICIPATION - The Director may elect to participate
in the Plan effective only as of the beginning of the
Company's fiscal year next following the date of notice of
such election. Such notice shall be in writing and delivered
to the Secretary of the Company not later than fifteen (15)
days prior to the first day of such fiscal year. Such notice
shall include the Director's election to establish either a
cash allotment or a stock allotment, which election shall be
irrevocable with respect to any given fiscal year. The
Director shall have the right during the term of this
Agreement to change such election from a cash allotment to a
stock allotment, or from a stock allotment to a cash
allotment, as the case may be, effective, however, only with
respect to the Director's cash compensation for services to
the Company for the fiscal year next following the date of
notice of such change. Such notice shall be in writing and
delivered to the Secretary of the Company not later than six
(6) months prior to the first day of such fiscal year.
III. DUTIES AND TERMINATION DATE - The Director will serve
as a member of the Company's Board of Directors, and perform
faithfully the duties of a member of the Board, including
service on Committees of the Board and service in an
advisory and consultative capacity to the Chairman and
Officers of the Company at such times as may be reasonably
requested. This Agreement will terminate upon the date of
occurrence of any of the following events (the "Termination
Date"):
A. The date the Director ceases to hold
office as a member of the Company's Board of
Directors, or
B. The date of death of the Director,
or
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C. The date the Director elects in writing
to terminate this Agreement.
IV. COMPENSATION - The Director shall be compensated for
serving as a member of the Board, for attendance at special
meetings of the Board, and meetings of Committees of the
Board, and, where applicable, for serving as Chairman of a
Committee of the Board, pursuant to fees established from
time to time by the Board of Directors for such services;
provided, however, that such compensation shall not be paid,
set aside or distributed until at least six (6) months after
the Termination Date, in accordance with Section IX hereof.
V. EXPENSE REIMBURSEMENT - The Director shall be
reimbursed in cash, on a current basis, for all travel and
incidental expenses incurred for the benefit of the Company,
whether in connection with attendance at meetings of the
Company's Board of Directors or otherwise.
VI. DEFERRED COMPENSATION ACCOUNT - The Company shall
establish a Deferred Compensation Account (the "Account")
for the Director. As of the last day of the Company's fiscal
quarter during which this Agreement is effective, and as of
the last day of each applicable succeeding fiscal quarter
during the term of this Agreement, the Company shall credit
to the Account the amount, in cash or stock equivalents, as
hereinafter described, of the Director's compensation
payable for services during such fiscal quarter.
VII. CASH OR STOCK ELECTION
A. The entire amount credited to the Account
for each fiscal quarter shall be credited either as a
cash allotment or as a stock allotment in accordance
with the Director's written election.
B. If a cash allotment is elected, the
Account shall be credited with the dollar amount of
the allotment, and the Account shall be credited, at
the end of each fiscal quarter during the term of
this Agreement, with interest at the rate equal to
the prime interest rate of National City Bank
(Cleveland) in effect on the last day of the quarter.
C. If a stock allotment is elected, the
Account shall be credited with a stock equivalent
which shall be equal to the number of shares
(computed to the nearest one-hundredth of a share) of
the Company's Common Shares (the "Common Shares")
that could be purchased with the dollar amount of the
allotment at the last sales price of the Common
Shares on the NASDAQ National Market System, or the
closing price of such shares on the principal
exchange on which such shares are listed, as the case
may be, on the last trading day of the applicable
quarter of the Company.
D. On the last day of each fiscal quarter
during the term of this Agreement, the Account shall
be credited with an additional stock
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equivalent which shall be equal to the number of
Common Shares (computed to the nearest one-hundredth
of a share) that could be purchased with the dollar
amount determined by multiplying the dividends paid
per Common Share to shareholders of record during
such fiscal quarter, by the number of shares,
including fractional shares, in the Account at the
beginning of such fiscal quarter, with appropriate
adjustment to reflect any increase or decrease
during the period in the number of shares in the
Account as a result of the application of paragraph
E of this Section VII.
E. In the event of any change in the Common
Shares upon which the stock equivalency hereunder is
based, by reason of a merger, consolidation,
reorganization, recapitalization, stock dividend,
stock split, combination or exchange of shares, or
other change in the corporate structure, the number
of shares credited to the Director shall be
appropriately adjusted.
F. THIS IS A CASH DEFERRED COMPENSATION
PLAN, AND UNDER NO CIRCUMSTANCES SHALL THE DIRECTOR'S
DEFERRED COMPENSATION BE PAID IN ACTUAL COMMON SHARES
OF THE COMPANY.
VIII. FINAL ACCOUNT BALANCE - The balance in the Account on the
Termination Date (the "Final Account Balance") shall be (i) in
the case of cash allotment, the cash balance on the
Termination Date, and (ii) in the case of stock allotment, the
amount of cash equal to the aggregate stock equivalents in the
Account on the Termination Date multiplied by the last sales
price of the Common Shares on the NASDAQ National Market
System or the closing price of such shares on the principal
exchange on which such shares are listed, as the case may be,
on the nearest trading day preceding the Termination Date. No
further interest (in the case of cash allotment) or dividend
equivalent (in the case of stock allotment) shall accrue or be
credited to the Account after the Termination Date.
IX. DISTRIBUTION
A. Distribution of the Final Account Balance
shall be made in cash in five (5) approximately equal
annual installments, without interest, commencing six
(6) months after the Termination Date.
Notwithstanding the foregoing, at any time after the
Termination Date, the Director may, by written notice
to the Company, elect to receive distribution of the
Final Account Balance in a single lump sum payment,
at any time six (6) months after the Termination
Date.
B. In the event the Final Account Balance or
any portion thereof shall be distributable after the
Director's death, the same shall be distributed, as
provided in paragraph A of this Section IX, to such
person or persons, or the survivors thereof,
including corporations,
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unincorporated associations or trusts, as the
Director may have designated in writing and delivered
to the Secretary of the Company. The Director may
from time to time revoke or change any such
designation by written notice delivered to the
Secretary of the Company. If there is no unrevoked
designation on file with the Company at any time of
the Director's death, such distribution shall be made
to the Director's estate in one lump sum payment to
be made at the later of (i) six (6) months after date
of death or (ii) thirty (30) days of the appointment
of the Executor of the estate.
X. MISCELLANEOUS
A. Neither the Director nor any other person
shall have any interest in any fund or in any
specific asset or assets of the Company by reason of
any cash or stock equivalents credited to the Account
of a Director hereunder, nor the right to exercise
any of the rights or privileges of a shareholder with
respect to any stock equivalents credited to his
Account, nor any right to receive any distribution
under this Agreement except as and to the extent
expressly provided in this Agreement. Any allotment
or credit to the Account shall be reflected as a
general asset on the books of the Company, subject to
the claims and obligations of creditors and others
and any liability created hereunder to the Director
shall be in the nature of a general claim without any
priority or right being created in the Director.
B. The Director shall not have the right to
assign, pledge or otherwise dispose of (except as
provided in Section IX hereof) any cash or stock
equivalents in the Account, nor shall his interest
therein be subject to garnishment, attachment,
transfer by operation of law, or any legal process.
If the Director should attempt to assign, pledge or
otherwise dispose of (except as provided in Section
IX thereof) any cash and/or stock equivalents in the
Account or if any attempt shall be made to garnish,
attach, transfer by operation of law or by any legal
process his interest in the Account, all cash and
stock equivalents in the Account and all interests of
the Director therein, shall, at the discretion of the
Company, cease and determine, and in such event the
Company may hold or apply same or any part thereof
for the benefit of the Director, the Director's
spouse, children or other dependents, or any of them,
in such manner and in such proportion as the Company
may deem proper.
C. This Agreement shall not be assignable by
the Company without the written consent of the
Director, except that, if the Company shall merge or
consolidate with or into, or transfer substantially
all of its assets including good will to, another
organization or other form of business organization,
this Agreement shall bind and run to the benefit of
the successor of the Company resulting from such
merger, consolidation or transfer.
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D. This Agreement comprises the entire
agreement between the parties hereto and supersedes,
cancels and annuls any and all prior agreements
between the parties hereto with respect to payments
to the Director for services to the Company. This
Agreement may not be modified or amended more than
once every six (6) months, other than to compart with
changes in the Internal Revenue Code, ERISA, or the
rules thereunder, which shall be in a writing duly
executed and delivered by the parties hereto.
E. This Agreement may be executed in
duplicate and each counterpart shall be deemed to be
an original, and both of which together shall
constitute one and the same instrument.
F. This Agreement shall be governed by and
construed in accordance with the laws of the State
of Ohio.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date hereof.
RPM, INC.
By: ____________________________
Xxxxxx X. Xxxxxxxx, Chairman
DIRECTOR
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