EX-10(D)



 







EXHIBIT 10(d)




THE SHERWIN-WILLIAMS COMPANY

2006 STOCK PLAN FOR NONEMPLOYEE DIRECTORS

Form of

Restricted Stock Grant




	 	 	 
	Grantee:
                                                        

	 	Date of Grant:
                                     
, 20    
	Number
of Shares:                                       
	 	 






     1. Grant of Restricted Shares. The Board of Directors (the “Board”) of The Sherwin-Williams
Company (the “Company”) grants to you (the “Grantee”) the aggregate number of shares of Common
Stock, $1.00 par value, of the Company set forth above (the “Restricted Shares”) in accordance with
the terms hereof and of The Sherwin-Williams Company 2006 Stock Plan for Nonemployee Directors (the
“Plan”). Capitalized terms used herein without definition shall have the meanings assigned to them
in the Plan.



     2. Vesting of Restricted Shares. (A) The Restricted Shares shall vest to the extent of
one-third of the shares after Grantee has continuously served as a member of the Board for one full
year from the Date of Grant and additional one-third of the shares after each of the next two
successive full years thereafter during which Grantee shall have continuously served as a member of
the Board (the “Restriction Period”).




     (B) Notwithstanding Section 2(A) above, in the event of a “Change of Control” of the
Company, as defined below, during the Restriction Period the full number of the shares of
Restricted Shares shall immediately vest.



     3. Termination of Right to Restricted Shares. (A) On the date Grantee ceases to be a member
of the Board at any time during the Restriction Period, Grantee shall forfeit and lose all rights
to the Restricted Shares, except as otherwise provided below:




     (i) In the event of the death of Grantee during the Restriction Period, the full
number of Restricted Shares shall immediately vest.




     (ii) In the event Grantee ceases to be a member of the Board as a result of a
“Disability” due to sickness or bodily injury during the Restriction Period, the full
number of Restricted Shares shall immediately vest. The term “Disability” as used in
this grant means permanent and total disability within the meaning of Section 22(e)(3)
of the Internal Revenue Code of 1986, as the same has been or may be amended from time
to time.




     (iii) In the event Grantee ceases to be a member of the Board by reason of
Retirement, all rights of Grantee under this grant shall continue as if Grantee had
continued as a member of the Board. The term “Retirement” as used in this grant means
termination of Grantee’s status as a member of the Board at or after attaining the age
of sixty-five (65) or completing either five (5) years of service or five (5) one year
terms as



 









 






a member of the Board by reason of resignation from the Board or by reason of not
standing for reelection as a member of the Board.




     (B) In the event that Grantee knowingly or willfully engages in misconduct during the
Restriction Period, which is materially harmful to the interests of the Company or a
Subsidiary as determined by the Board, all rights of Grantee in the Restricted Shares shall
terminate.



     4. Book Entry Account; Stockholder Rights. Within a reasonable time following the Date of
Grant, the Company shall instruct its transfer agent to establish a book entry account representing
the Restricted Shares in Grantee’s name effective as of the Date of Grant, provided that the
Company shall retain control over the account until the Restricted Shares have vested. On the Date
of Grant, ownership of the Restricted Shares shall immediately transfer to Grantee and, except for
the substantial risk of forfeiture and the restrictions on transfer expressly set forth herein,
Grantee shall be entitled to all voting, dividend, distribution and other ownership rights as may
apply to the Common Stock generally. Notwithstanding the foregoing, any stock dividends or other
in-kind dividends or distributions shall be held by the Company until the related Restricted Shares
have become vested in accordance with this grant and shall remain subject to the forfeiture
provisions applicable to the Restricted Shares to which such dividends or distributions relate.



     5. Change of Control. A “Change of Control” shall be deemed to have occurred if:




     (A) Any person (as such term is used in Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended, hereinafter the “Exchange Act”) who or that, together with
all “Affiliates” and “Associates” (as such terms are defined in Rule 12b-2, as in effect on
April 23, 1997, of the General Rules and Regulations under the Exchange Act) of such person, is
the Beneficial Owner (as defined below) of ten percent (10%) or more of the shares of Common
Stock then outstanding, except:




     (i) the Company;




     (ii) any of the Company’s subsidiaries in which a majority of the voting power of the
equity securities or equity interests of such subsidiary is owned, directly or indirectly,
by the Company;




     (iii) any employee benefit or stock ownership plan of the Company or any trustee or
fiduciary with respect to such a plan acting in such capacity; or




     (iv) any such person who has reported or may, pursuant to Rule 13d-l(b)(1) of the
General Rules and Regulations under the Exchange Act, report such ownership (but only as
long as such person is the Beneficial Owner of less than fifteen percent (15%) of the shares
of Common Stock then outstanding) on Schedule 13G (or any comparable or successor report)
under the Exchange Act.




Notwithstanding the foregoing: (a) no person shall become the Beneficial Owner of ten percent
(10%) or more (fifteen percent (15%) or more in the case of any person identified in clause (iv)
above) solely as the result of an acquisition of Common Stock by the Company that, by reducing
the number of shares outstanding, increases the proportionate number of



2









 






shares beneficially owned by such person to ten percent (10%) or more (fifteen percent (15%) or
more in the case of any person identified in clause (iv) above) of the shares of Common Stock
then outstanding; provided, however, that if a person becomes the Beneficial Owner of ten
percent (10%) or more (fifteen percent (15%) or more in the case of any person identified in
clause (iv) above) of the shares of Common Stock solely by reason of purchases of Common Stock
by the Company and shall, after such purchases by the Company, become the Beneficial Owner of
any additional shares of Common Stock which has the effect of increasing such person’s
percentage ownership of the then-outstanding shares of Common Stock by any means whatsoever,
then such person shall be deemed to have triggered a Change of Control; and (b) if the Board
determines that a person who would otherwise be the Beneficial Owner of ten percent (10%) or
more (fifteen percent (15%) or more in the case of any person identified in clause (iv) above)
of the shares of Common Stock has become such inadvertently (including, without limitation,
because (1) such person was unaware that it Beneficially Owned ten percent (10%) or more
(fifteen percent (15%) or more in the case of any person identified
in clause (iv) above) of the shares of Common Stock or (2) such person was aware of the extent of such beneficial ownership
but such person acquired beneficial ownership of such shares of Common Stock without the
intention to change or influence the control of the Company) and such person divests itself as
promptly as practicable of a sufficient number of shares of Common Stock so that such person
would no longer be the Beneficial Owner of ten percent (10%) or more (fifteen percent (15%) or
more in the case of any person identified in clause (iv) above), then such person shall not be
deemed to be, or have been, the Beneficial Owner of ten percent (10%) or more (fifteen percent
(15%) or more in the case of any person identified in clause (iv) above) of the shares of Common
Stock, and no Change of Control shall be deemed to have occurred.




     (B) During any period of two consecutive years, individuals who at the beginning of such
period constituted the Board and any new director (other than a director initially elected or
nominated as a director as a result of an actual or threatened election contest with respect to
directors or any other actual or threatened solicitation of proxies by or on behalf of such
director) whose election by the Board or nomination for election by the Company’s shareholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof.




     (C) There shall be consummated any consolidation, merger or other combination of the Company
with any other person or entity other than:




     (i) a consolidation, merger or other combination which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the surviving entity)
more than fifty-one percent (51%) of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such consolidation, merger or
other combination; or




     (ii) a consolidation, merger or other combination effected to implement a recapitalization
and/or reorganization of the Company (or similar transaction), or any other consolidation,
merger or other combination of the Company, which results in no person, together with all
Affiliates and Associates of such person, becoming the Beneficial Owner of



3









 






ten percent (10%) or more (fifteen percent (15%) or more in the case of any person
identified in clause (A)(iv) above) of the combined voting power of the Company’s then
outstanding securities.




     (D) There shall be consummated any sale, lease, assignment, exchange, transfer or other
disposition (in one transaction or a series of related transactions) of fifty percent (50%) or more
of the assets or earning power of the Company (including, without limitation, any such sale, lease,
assignment, exchange, transfer or other disposition effected to implement a recapitalization and/or
reorganization of the Company (or similar transaction)) which results in any person, together with
all Affiliates and Associates of such person, owning a proportionate share of such assets or
earning power greater than the proportionate share of the voting power of the Company that such
person, together with all Affiliates and Associates of such person, owned immediately prior to any
such sale, lease, assignment, exchange, transfer or other disposition.




     (E) The shareholders of the Company approve a plan of complete liquidation of the Company.




     For purposes of this Section 5, a person shall be deemed the “Beneficial Owner” of and shall
be deemed to “beneficially own” any securities:




     (x) which such person or any of such person’s Affiliates or Associates is considered to be
a “beneficial owner” under Rule 13d-3 of the General Rules and Regulations under the Exchange
Act, as in effect on April 23, 1997;




     (y) which such person or any of such person’s Affiliates or Associates, directly or
indirectly, has or shares the right to acquire, hold, vote (except pursuant to a revocable
proxy as described in the proviso to this definition) or dispose of such securities (whether
any such right is exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing), or upon the exercise of
conversion rights, exchange rights, rights, warrants or options, or otherwise; provided,
however, that a person shall not be deemed to be the Beneficial Owner of, or to beneficially
own, securities tendered pursuant to a tender or exchange offer made by or on behalf of such
person or any of such person’s Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; or




     (z) which are beneficially owned, directly or indirectly, by any other person (or any
Affiliate or Associate of such other person) with which such person (or any of such person’s
Affiliates or Associates) has any agreement, arrangement or understanding (whether or not in
writing), with respect to acquiring, holding, voting (except as described in the proviso to
this definition) or disposing of any securities of the Company;




provided, however, that a person shall not be deemed the Beneficial Owner of, nor to beneficially
own, any security if such person has the right to vote such security pursuant to an agreement,
arrangement or understanding which (1) arises solely from a revocable proxy given to such person in
response to a public proxy or consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations under the Exchange Act, and (2) is not also then reportable on
Schedule 13D (or any comparable or successor report) under the Exchange Act; and provided, further,
that nothing in this Section 8.05 shall cause a person engaged in business



4









 






as an underwriter or securities to be the Beneficial Owner of, or to beneficially own, any
securities acquired through such person’s participation in good faith in a firm commitment
underwriting until the expiration of forty (40) days after the date of such acquisition or such
later date as the Board may determine in any specific case.



     6. Transferability. During the Restriction Period, Grantee shall not be permitted to sell,
transfer, pledge, encumber, assign or dispose of the Restricted Shares. The Restricted Shares
granted hereunder shall be deemed to be subject to a substantial risk of forfeiture within the
meaning of Section 83 of the Internal Revenue Code.



     7. Withholding Taxes. If the Company shall be required to withhold any federal, state, local
or foreign tax in connection with the Restricted Shares, Grantee shall pay or make provision
satisfactory to the Company for payment of all such taxes.



     8. No Right to Future Awards or Service. The grant is a voluntary, discretionary bonus being
made on a one-time basis and it does not constitute a commitment to make any future awards. This
grant will not confer upon Grantee any right with respect to continuance of service as a member of
the Board, nor will it interfere in any way with any right the Company would otherwise have to
terminate Grantee’s service at any time.



     9. Severability. If any provision of this grant or the application of any provision hereof to
any person or circumstances is held invalid, unenforceable or otherwise illegal, the remainder of
this grant and the application of such provision to any other person or circumstances shall not be
affected, and the provisions so held to be invalid, unenforceable or otherwise illegal shall be
reformed to the extent (and only to the extent) necessary to make it enforceable, valid and legal.



     10. Governing Law. This grant shall be governed by and construed with the internal
substantive laws of the State of Ohio, without giving effect to any principle of law that would
result in the application of the law of any other jurisdiction.




5