exv10wd






EXHIBIT 10(d)




THE SHERWIN-WILLIAMS COMPANY




FORM A — AMENDED AND RESTATED

SEVERANCE AGREEMENT

(3 Times Base Pay Amount)




          THIS SEVERANCE AGREEMENT (this “Agreement”), dated as of _________, ______, is made and
entered into by and between THE SHERWIN-WILLIAMS COMPANY, an Ohio corporation (“Company”) and
___________________________(“Executive”).




RECITALS:





	 	A.	 	Executive is a senior executive of Company or one or more of its Subsidiaries
(as defined below) and has made and is expected to continue to make major contributions
to the short- and long-term profitability, growth and financial strength of Company.
	 
	 	B.	 	Company recognizes that the possibility of a Change in Control (as defined
below) exists and that such possibility, and the uncertainty it may create among
management, may result in the distraction or departure of management personnel, to the
detriment of Company and its stockholders.
	 
	 	C.	 	Company desires to assure itself of both present and future continuity of
management and desires to establish certain minimum severance benefits for certain of
its senior executives, including Executive, applicable in the event of a Change in
Control.
	 
	 	D.	 	Company wishes to ensure that its senior executives are not unduly distracted
by the circumstances attendant to the possibility of a Change in Control and to
encourage the continued attention and dedication of such executives, including
Executive, to their assigned duties with Company.
	 
	 	E.	 	Company desires to provide additional inducement for Executive to continue to
remain in the employ of Company.
	 
	 	F.	 	Company and Executive are parties to a Severance Agreement dated as of February
1, 2007 (the “Effective Date”), which agreement is hereby amended, restated and
replaced in its entirety with this Agreement in order to comply with the final
regulations issued under Section 409A of the Code.





     NOW, THEREFORE, Company and Executive agree as follows:



          1. Certain Defined Terms. In addition to terms defined elsewhere herein,
the following terms have the following meanings when used in this Agreement with initial capital
letters:




               (a) “Base Pay” means Executive’s annual base salary rate as in effect from time to
time.



               (b) “Board” means the Board of Directors of Company.



               (c) “Cause” means that, prior to any termination pursuant to Section 3(a)(iii),
Executive shall have:



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                    (i) been convicted of a criminal violation involving, in each case, fraud,
embezzlement or theft in connection with Executive’s duties or in the course of Executive’s
employment with Company or any Subsidiary;




                    (ii) committed intentional wrongful damage to property of Company or any
Subsidiary; or




                    (iii) committed intentional wrongful disclosure of secret processes or
confidential information of Company or any Subsidiary;




and any such act shall have been demonstrably and materially harmful to Company. For
purposes of this Agreement, no act or failure to act on the part of Executive will be deemed
“intentional” if it was due primarily to an error in judgment or negligence, but will be
deemed “intentional” only if done or omitted to be done by Executive not in good faith and
without reasonable belief that Executive’s action or omission was in the best interest of
Company. Notwithstanding the foregoing, Executive will not be deemed to have been
terminated for “Cause” hereunder unless and until there shall have been delivered to
Executive a copy of a resolution duly adopted by the affirmative vote of not less than a
majority of the Board then in office (excluding Executive if Executive is then a member of
the Board) at a meeting of the Board called and held for such purpose, after reasonable
notice to Executive and an opportunity for Executive, together with Executive’s counsel (if
Executive chooses to have counsel present at such meeting), to be heard before the Board,
finding that, in the good faith opinion of the Board, Executive had committed an act
constituting “Cause” as herein defined and specifying the particulars thereof in reasonable
detail. Nothing herein will limit the right of Executive or Executive’s beneficiaries to
contest the validity or propriety of any such determination.



               (d) “Change in Control” means the occurrence during the Term of any of the following
events:




                    (i) any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) (a “Person”) is or becomes the beneficial owner (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of the combined
voting power of the then-outstanding Voting Stock of Company; provided,
however, that:




               (1) for purposes of this Section 1(d)(i), the following acquisitions
will not constitute a Change in Control: (A) any acquisition of Voting Stock
directly from Company that is approved by a majority of the Incumbent Directors,
(B) any acquisition of Voting Stock by Company or any Subsidiary, (C) any
acquisition of Voting Stock by the trustee or other fiduciary holding securities
under any employee benefit plan (or related trust) sponsored or maintained by
Company or any Subsidiary, and (D) any acquisition of Voting Stock by any Person
pursuant to a Business Transaction that complies with clauses (A), (B) and (C) of
Section 1(d)(iii) below;




               (2) if any Person is or becomes the beneficial owner of 30% or more
of combined voting power of the then-outstanding Voting Stock as a result of a
transaction described in clause (A) of Section 1(d)(i)(1) above and such Person
thereafter becomes the beneficial owner of any additional shares of Voting Stock
representing 1% or more of the then-outstanding Voting Stock, other than in an
acquisition directly from Company that is approved by a majority of the Incumbent
Directors or other than as a result of a stock dividend, stock split or similar
transaction effected by Company in which all



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holders of Voting Stock are treated equally, such subsequent acquisition shall
be treated as a Change in Control;




               (3) a Change in Control will not be deemed to have occurred if a
Person is or becomes the beneficial owner of 30% or more of the Voting Stock as a
result of a reduction in the number of shares of Voting Stock outstanding pursuant
to a transaction or series of transactions that is approved by a majority of the
Incumbent Directors unless and until such Person thereafter becomes the beneficial
owner of any additional shares of Voting Stock representing 1% or more of the
then-outstanding Voting Stock, other than as a result of a stock dividend, stock
split or similar transaction effected by Company in which all holders of Voting
Stock are treated equally; and




               (4) if at least a majority of the Incumbent Directors determine in
good faith that a Person has acquired beneficial ownership of 30% or more of the
Voting Stock inadvertently, and such Person divests as promptly as practicable but
no later than the date, if any, set by the Incumbent Board a
sufficient number of shares so that such Person beneficially owns less than 30% of the Voting Stock, then
no Change in Control shall have occurred as a result of such Person’s acquisition;
or




                    (ii) a majority of the Board ceases to be comprised of Incumbent Directors;
or




                    (iii) the consummation of a reorganization, merger or consolidation, or sale
or other disposition of all or substantially all of the assets of Company or the acquisition
of the stock or assets of another corporation, or other transaction (each, a “Business
Transaction”), unless, in each case, immediately following such Business Transaction (A) the
Voting Stock outstanding immediately prior to such Business Transaction continues to
represent (either by remaining outstanding or by being converted into voting stock of the
surviving entity or any parent thereof), more than 50% of the combined voting power of the
then outstanding shares of voting stock of the entity resulting from such Business
Transaction (including, without limitation, an entity which as a result of such transaction
owns Company or all or substantially all of Company’s assets either directly or through one
or more subsidiaries), (B) no Person (other than Company, such entity resulting from such
Business Transaction, or any employee benefit plan (or related trust) sponsored or
maintained by Company, any Subsidiary or such entity resulting from such Business
Transaction) beneficially owns, directly or indirectly, 30% or more of the combined voting
power of the then outstanding shares of voting stock of the entity resulting from such
Business Transaction, and (C) at least a majority of the members of the board of directors
of the entity resulting from such Business Transaction were Incumbent Directors at the time
of the execution of the initial agreement or of the action of the Board providing for such
Business Transaction; or




                    (iv) approval by the shareholders of Company of a complete liquidation or
dissolution of Company, except pursuant to a Business Transaction that complies with clauses
(A), (B) and (C) of Section 1(d)(iii).




                    (v) For purposes of this Section 1(d), the term “Incumbent Directors” shall
mean, 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



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directors at the beginning of the period or whose election or nomination for election
was previously so approved.



               (e) “Code” means the Internal Revenue Code of 1986, as amended.



               (f) “Common Shares” means shares of common stock, no par value, of Company.



               (g) “Employee Benefits” means the perquisites, benefits and service credit for
benefits as provided under any and all employee retirement income and welfare benefit policies,
plans, programs or arrangements in which Executive is entitled to participate, including without
limitation any stock option, performance share, performance unit, stock purchase, stock
appreciation, savings, pension, supplemental executive retirement, or other retirement income or
welfare benefit, deferred compensation, incentive compensation, group or other life, health,
medical/hospital or other insurance (whether funded by actual insurance or self-insured by Company
or a Subsidiary), disability, salary continuation, expense reimbursement and other employee benefit
policies, plans, programs or arrangements that may now exist or any equivalent successor policies,
plans, programs or arrangements that may be adopted hereafter by Company or a Subsidiary, providing
benefits and service credit for benefits at least as great in the aggregate as are payable
thereunder immediately prior to a Change in Control.



               (h) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



               (i) “Good Reason” means the occurrence of one or more of the following events:




               (i) Failure to elect or reelect or otherwise to maintain Executive in the
office or the position, or a substantially equivalent or better office or position, of or
with Company and/or a Subsidiary (or any successor thereto by operation of law or
otherwise), as the case may be, which Executive held immediately prior to a Change in
Control, or the removal of Executive as a Director of Company and/or a Subsidiary (or any
successor thereto) if Executive shall have been a Director of Company and/or a Subsidiary
immediately prior to the Change in Control;




               (ii) Failure of Company to remedy any of the following within 10 calendar
days after receipt by Company of written notice thereof from Executive: (A) a significant
adverse change in the nature or scope of the authorities, powers, functions,
responsibilities or duties attached to the position with Company and any Subsidiary which
Executive held immediately prior to the Change in Control, (B) a reduction in Executive’s
Base Pay received from Company and any Subsidiary, (C) a reduction in Executive’s Incentive
Pay opportunity as compared with the Incentive Pay opportunity most recently paid prior to
the Change in Control, or (D) the termination or denial of Executive’s rights to Employee
Benefits or a reduction in the scope or value thereof;




               (iii) The liquidation, dissolution, merger, consolidation or reorganization
of Company or the transfer of all or substantially all of its business and/or assets, unless
the successor or successors (by liquidation, merger, consolidation, reorganization, transfer
or otherwise) to which all or substantially all of its business and/or assets have been
transferred (by operation of law or otherwise) assumed all duties and obligations of Company
under this Agreement pursuant to Section 10(a);




               (iv) Company requires Executive to have Executive’s principal location of
work changed to any location that is in excess of 30 miles from the location thereof
immediately prior to the Change in Control, or requires Executive to travel away from
Executive’s office in the course of discharging Executive’s responsibilities or duties
hereunder at least 20% more (in



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terms of aggregate days in any calendar year or in any calendar quarter when annualized
for purposes of comparison to any prior year) than was required of Executive in any of the
three full years immediately prior to the Change in Control without, in either case,
Executive’s prior written consent; or




               (v) Without limiting the generality or effect of the foregoing, any material
breach of this Agreement by Company or any successor thereto.



               (j) “Incentive Pay” means an annual bonus, incentive or other payment of
compensation, in addition to Base Pay, made or to be made in regard to services rendered in any
year pursuant to any bonus, incentive, profit-sharing, performance, discretionary pay or similar
agreement, policy, plan, program or arrangement (whether or not funded) of Company or a Subsidiary,
or any successor thereto. “Incentive Pay” does not include any stock option, stock appreciation,
stock purchase, restricted stock, private equity, long-term incentive or similar plan, program,
arrangement or grant, whether or not provided under a plan, program or arrangement described in the
preceding sentence.



               (k) “Severance Period” means the period of time commencing on the date of the first
occurrence of a Change in Control and continuing until the earlier of (i) the second anniversary of
the occurrence of the Change in Control, or (ii) Executive’s death;



               (l) “Subsidiary” means an entity in which Company directly or indirectly
beneficially owns 50% or more of the outstanding voting stock of such entity.



               (m) “Term” means the period commencing as of the Effective Date and expiring on the
close of business on December 31, 2008; provided, however, that (i) commencing on
January 1, 2008 and each January 1 thereafter, the term of this Agreement will automatically be
extended for an additional year unless, not later than September 30 of the immediately preceding
year, Company or Executive shall have given notice that Company or Executive, as the case may be,
does not wish to have the Term extended; (ii) if a Change in Control occurs during the Term, the
Term will expire on the last day of the Severance Period; and (iii) subject to Section 3(c), if,
prior to a Change in Control, the Executive ceases for any reason to be a corporate officer or
operating president of Company and any Subsidiary, thereupon without further action the Term shall
be deemed to have expired and this Agreement will immediately terminate and be of no further
effect; provided however, that this Section 1(m)(iii) shall not apply to terminate the Agreement
with respect to any Executive who had a Severance Pay Agreement or Amended and Restated Severance
Pay Agreement between Company and Executive in effect on February 20, 2007 and who entered into
this Agreement effective February 21, 2007. For purposes of this Section 1(m), the Executive shall
not be deemed to have ceased to be an employee of Company and any Subsidiary by reason of the
transfer of the Executive’s employment between Company and any Subsidiary, or among any
Subsidiaries.



               (n) “Termination Date” means the date on which Executive’s employment is terminated
(the effective date of which will be the date of termination, or such other date that may be
specified by Executive if the termination is pursuant to Section 3(b)).



               (o) “Voting Stock” means at any time, the then-outstanding securities entitled to
vote generally in the election of directors of Company.



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     2. Operation of Agreement. This Agreement will be effective and binding
immediately upon its execution, but, anything in this Agreement to the contrary notwithstanding,
except as provided in Section 3(c), this Agreement will not be operative unless and until a Change
in Control occurs. Upon the occurrence of a Change in Control at any time during the Term, without
further action, this Agreement will become immediately operative.




     3. Termination Following a Change in Control.




          (a) In the event of the occurrence of a Change in Control, Executive’s employment may be
terminated by Company or a Subsidiary during the Severance Period (or pursuant to Section 3(c)) and
Executive will be entitled to the benefits provided by Section 4 unless such termination is the
result of the occurrence of one or more of the following events:





                    (i) Executive’s death;




                    (ii) If Executive becomes permanently disabled within the meaning of, and
begins actually to receive disability benefits pursuant to, the long-term disability plan in
effect for, or applicable to, Executive immediately prior to the Change in Control; or




                    (iii) Cause.




If, during the Severance Period, Executive’s employment is terminated by Company or any
Subsidiary other than pursuant to Section 3(a)(i), 3(a)(ii) or 3(a)(iii), Executive will be
entitled to the benefits provided by Section 4.



               (b) In the event of the occurrence of a Change in Control, Executive may terminate
employment with Company and any Subsidiary during the Severance Period for Good Reason with the
right to severance compensation as provided in Section 4 regardless of whether any other reason,
other than Cause, for such termination exists or has occurred, including without limitation other
employment.



               (c) Anything in this Agreement to the contrary notwithstanding, if a Change in
Control occurs and not more than 90 days prior to the date on which the Change in Control occurs,
Executive’s employment with Company is terminated by Company, such termination of employment will
be deemed to be a termination of employment immediately after a Change in Control for purposes of
determining whether Executive is entitled to benefits under this Agreement if Executive has
reasonably demonstrated that such termination of employment (i) was at the request of a third party
who has taken steps reasonably calculated to effect a Change in Control, or (ii) otherwise arose in
connection with or in anticipation of a Change in Control.



               (d) A termination of employment pursuant to Section 3(a), 3(b) or 3(c) will not
affect any rights that Executive may have pursuant to any agreement, policy, plan, program or
arrangement of Company or Subsidiary providing Employee Benefits, which rights will be governed by
the terms thereof. Notwithstanding the foregoing, any severance benefits received by Executive
pursuant to Section 4 of this Agreement shall be in lieu of any severance benefits to which
Executive would otherwise be entitled under any severance plan, program, policy or practice or
contract or agreement of Company or its affiliates (other than a retirement plan or other deferred
compensation arrangement, equity award, welfare benefit plan or any similar plan or agreement which
may contain provisions that become operative on, or that may incidentally refer to accelerated
vesting or accelerated payment upon, a termination of Executive’s employment).



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     4. Severance Compensation.




     (a) If, following the occurrence of a Change in Control, Company or Subsidiary terminates
Executive’s employment during the Severance Period other than pursuant to Section 3(a)(i), 3(a)(ii)
or 3(a)(iii), or if Executive terminates Executive’s employment pursuant to Section 3(b), Company
will be obligated to make the following payments and provide the following benefits to Executive.





               (i) Within ten business days after the occurrence of an event described in
Section 4(a) above (or in the case of an event described in Section 3(c), within 10 business
days after the Change in Control), Company shall pay, in a lump sum, an amount equal to
three (3) times the sum of (A) Base Pay (at the highest rate in effect for any period within
three years prior to the Termination Date), plus (B) an amount equal to the greater of: (x)
the average of the Incentive Pay earned or received by Executive during the three year
period immediately preceding the Termination Date, or (y) the Executive’s target Incentive
Pay for the year in which the Termination Date occurs (assuming the Executive achieves 100%
of any stated goals); provided, however, that if payment to Executive would
constitute a “deferral of compensation” under Section 409A of the Code, Executive (or
Executive’s beneficiary) will receive payment of the amounts described in this Section
4(a)(i) upon the earlier of (i) six (6) months following Executive’s “separation from
service” with Company (as such phrase is defined in Section 409A of the Code) or (ii) within
90 days after Executive’s death.




               (ii) For a period of eighteen (18) months following the Termination Date (the
“Continuation Period”), Company shall arrange to provide Executive, at no cost to Executive,
with medical and dental benefits substantially similar to those that Executive was receiving
or entitled to receive immediately prior to the Termination Date (or, if greater,
immediately prior to the reduction, termination, or denial described in Section 1(i)(ii)).
The Continuation Period shall be considered to be the period during which Executive shall be
eligible for continuation coverage under Section 4980B of the Code, and Company shall
reimburse Executive for the amount of the premiums for such continuation coverage;
provided, however that without otherwise limiting the purposes or effect of
Section 6, the benefits otherwise receivable by Executive pursuant to this Section 4(a)(ii)
will be reduced to the extent comparable welfare benefits are actually received by Executive
from another employer during the Continuation Period following Executive’s Termination Date,
and any such benefits actually received by Executive shall be reported by Executive to
Company. If any benefit described in this Section 4(a)(ii) is subject to tax, Company will
pay to Executive an additional amount such that after payment by Executive or Executive’s
dependents or beneficiaries, as the case may be, of all taxes so imposed, the recipient
retains an amount equal to such taxes.




               (iii) Executive shall be entitled to outplacement services by a firm selected
by Executive, at the expense of Company in an amount not to exceed ten percent (10%) of Base
Pay; provided, however, that all such outplacement services must be
completed, and all payments by Company must be made, by December 31 of the second calendar
year following the calendar year in which the Termination Date occurs.



               (b) Without limiting the rights of Executive at law or in equity, if Company fails
to make any payment or provide any benefit required to be made or provided hereunder on a timely
basis, Company will pay interest on the amount or value thereof at an annualized rate of interest
equal to the “prime rate” as set forth from time to time during the relevant period in The Wall
Street Journal “Money Rates” column. Such interest will be payable at the time the related
payment or benefit is paid to Executive. Any change in such prime rate will be effective on and as
of the date of such change.



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               (c) Unless otherwise expressly provided by the applicable plan, program or
agreement, after the occurrence of a Change in Control, Company will pay in cash to Executive a
lump sum amount equal to the sum of (i) any unpaid Incentive Pay that would have been earned,
accrued, allocated or awarded to Executive for any performance period ending prior to the Change in
Control (regardless of whether (x) payment of such compensation is contingent on the continuing
performance of services by Executive or (y) the bonus, incentive, profit-sharing, performance,
discretionary pay or similar agreement, policy, plan, program or arrangement pursuant to which such
Incentive Pay would otherwise be payable permits pro-ration), plus (ii) the value of any annual
bonus or long-term Incentive Pay (including, without limitation, incentive-based annual cash
bonuses and performance units, but not including any equity-based compensation or compensation
provided under a qualified plan) payable pursuant to any performance period that is outstanding on
the date of the Change in Control. Such payment will be made at the earlier of (x) the date
prescribed for payment pursuant to the applicable plan, program or agreement, and (y) within five
business days after the Change in Control. In the case of clauses (i) and (ii), any applicable
vesting requirements will be disregarded. In the case of clause (ii), the amount will be
calculated at the greater of (1) the plan target or payout rate and (2) the amount determined based
on Company’s actual results relative to the applicable performance criteria as if the performance
period had ended on the date of the Change in Control, which amount will be prorated on the basis
of the number of days of Executive’s participation during the applicable performance period to
which the incentive pay related divided by the aggregate number of days in such performance period,
taking into account service rendered through the payment date.



          5. Certain Additional Payments by the Company.




          (a) Anything in this Agreement to the contrary notwithstanding, but subject to Paragraph 7 of
Annex A, in the event that this Agreement becomes operative and it is determined (as hereafter
provided) that any payment (other than the Gross-Up payments provided for in this Section 5 and
Annex A) or distribution by Company or any of its affiliates to or for the benefit of Executive,
whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or
otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement,
including without limitation any stock option, performance share, performance unit, stock
appreciation right or similar right, or the lapse or termination of any restriction on or the
vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the excise tax
imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being
considered “contingent on a change in ownership or control” of Company, within the meaning of
Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by
state or local law, or any interest or penalties with respect to such tax (such tax or taxes,
together with any such interest and penalties, being hereafter collectively referred to as the
“Excise Tax”), then Executive will be entitled to receive an additional payment or payments
(collectively, a “Gross-Up Payment”); provided, however, that no Gross-up Payment will be made with
respect to the Excise Tax, if any, attributable to (i) any incentive stock option, as defined by
Section 422 of the Code (“ISO”) granted prior to the execution of this Agreement, or (ii) any stock
appreciation or similar right, whether or not limited, granted in tandem with any ISO described in
clause (i). The Gross-Up Payment will be in an amount such that, after payment by Executive of all
taxes (including any interest or penalties imposed with respect to such taxes), including any
Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payment.




          (b) The obligations set forth in Section 5(a) will be subject to the procedural provisions
described in Annex A.




          6. No Mitigation Obligation. Company hereby acknowledges that it will be
difficult and may be impossible for Executive to find reasonably comparable employment following
Termination Date. Accordingly, the payment of the severance compensation by Company to Executive
in accordance with






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the terms of this Agreement is hereby acknowledged by Company to be reasonable, and Executive
will not be required to mitigate the amount of any payment provided for in this Agreement by
seeking other employment or otherwise, nor will any profits, income, earnings or other benefits
from any source whatsoever create any mitigation, offset, reduction or any other obligation on the
part of Executive hereunder or otherwise.




          7. Legal Fees and Expenses.




          (a) It is the intent of Company that Executive not be required to incur legal fees and the
related expenses associated with the interpretation, enforcement or defense of Executive’s rights
in connection with any dispute arising under this Agreement because the cost and expense thereof
would substantially detract from the benefits intended to be extended to Executive hereunder.
Accordingly, if it should appear to Executive that Company has failed to comply with any of its
obligations under this Agreement or in the event that Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable, or institutes any
proceeding designed to deny, or to recover from, Executive the benefits provided or intended to be
provided to Executive hereunder, Company irrevocably authorizes Executive from time to time to
retain counsel of Executive’s choice, at the expense of Company as hereafter provided, to advise
and represent Executive in connection with any such dispute or proceeding. Notwithstanding any
existing or prior attorney-client relationship between Company and such counsel, Company
irrevocably consents to Executive’s entering into an attorney-client relationship with such
counsel, and in that connection Company and Executive agree that a confidential relationship will
exist between Executive and such counsel. Without respect to whether Executive prevails, in whole
or in part, in connection with any of the foregoing, Company will pay and be solely financially
responsible for any and all attorneys’ and related fees and expenses incurred by Executive at any
time from the Effective Date through Executive’s remaining lifetime, (or, if longer, through the
20th anniversary of the Effective Date) in connection with any of the foregoing. Such payments will
be made within five business days after delivery of Executive’s written requests for payment,
accompanied by such evidence of fees and expenses incurred as Company may reasonably require;
provided that Executive shall have submitted all required documentation at least 14 days before the
end of the calendar year next following the calendar year in which such fees and expenses were
incurred.




               (b) In order to secure the benefits to be received by Executive pursuant to this Agreement
and similar arrangements with other executives, Company shall establish one or more trust funds
(the “Trust”). Company will deposit in such Trust, within five (5) business days after the
occurrence of an event that in the reasonable opinion of the Board will likely result in a Change
in Control, an amount equal to approximately the maximum aggregate benefits that could be payable
to Executive under the terms of this Agreement; provided, however, that (i) the Trust shall not be
funded if the funding thereof would result in taxable income to Executive by reason of Section
409A(b) of the Code; and (ii) in no event shall any Trust assets at any time be located or
transferred outside of the United States, within the meaning of Section 409A(b) of the Code. Any
funds which may be placed into the Trust under this Agreement shall continue for all purposes to be
a part of the general funds of Company subject to the claims of Company’s creditors in the event of
Company’s insolvency and no person shall by virtue of this Agreement have any interest in such
funds. To the extent that any person acquires a right to receive payments from Company under this
Agreement, such rights shall be no greater than the right of any unsecured general creditor of
Company. Executive shall be entitled to receive distributions from the funds held in the Trust
pursuant to the terms and conditions of this Agreement and the agreement establishing the Trust
between Company and the trustee. If prior to the date of a Change in Control, the Board has actual
knowledge that all third parties have abandoned or terminated their efforts to effect a Change in
Control and a Change in Control at that time is unlikely and the Board so advises Executive, the
trust funds and interest earned thereon, if any, shall be returned to Company by the trustee.
Notwithstanding the provisions of this Section 6(b), failure by Company to place such funds in
Trust in



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no way relieves Company from its financial obligations and responsibilities to Executive under the
terms of this Agreement.




               (c) All benefits to be paid pursuant to this Agreement, including any amounts paid pursuant to
Section 6(a) which were not paid through the Trust established pursuant to Section 6(b), shall be
paid from the general assets of the Company.



          8. Employment Rights. Nothing expressed or implied in this Agreement will
create any right or duty on the part of Company or Executive to have Executive remain in the
employment of Company or any Subsidiary prior to or following any Change in Control.




          9. Withholding of Taxes. Company may withhold from any amounts payable
under this Agreement all federal, state, city or other taxes as Company is required to withhold
pursuant to any applicable law, regulation or ruling.




          10. Successors and Binding Agreement.




          (a) Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of the business or assets
of Company, by agreement in form and substance reasonably satisfactory to Executive, expressly to
assume and agree to perform this Agreement in the same manner and to the same extent Company would
be required to perform if no such succession had taken place. This Agreement will be binding upon
and inure to the benefit of Company and any successor to Company, including without limitation any
persons acquiring directly or indirectly all or substantially all of the business or assets of
Company whether by purchase, merger, consolidation, reorganization or otherwise (and such successor
will thereafter be deemed the “Company” for the purposes of this Agreement), but will not otherwise
be assignable, transferable or delegable by Company.




          (b) This Agreement will inure to the benefit of and be enforceable by Executive’s personal or
legal representatives, executors, administrators, successors, heirs, distributees and legatees.




          (c) This Agreement is personal in nature and neither of the parties hereto will, without the
consent of the other, assign, transfer or delegate this Agreement or any rights or obligations
hereunder except as expressly provided in Sections 10(a) and 10(b). Without limiting the
generality or effect of the foregoing, Executive’s right to receive payments hereunder will not be
assignable, transferable or delegable, whether by pledge, creation of a security interest, or
otherwise, other than by a transfer by Executive’s will or by the laws of descent and distribution
and, in the event of any attempted assignment or transfer contrary to this Section 10(c), Company
will have no liability to pay any amount so attempted to be assigned, transferred or delegated.




          11. Notices. For all purposes of this Agreement, all communications,
including without limitation notices, consents, requests or approvals, required or permitted to be
given hereunder will be in writing and will be deemed to have been duly given when hand delivered
or dispatched by electronic facsimile transmission (with receipt thereof orally confirmed), or five
business days after having been mailed by United States registered or certified mail, return
receipt requested, postage prepaid, or three business days after having been sent by a nationally
recognized overnight courier service such as FedEx or UPS, addressed to Company (to the attention
of the Secretary of Company) at its principal executive office and to Executive at Executive’s
principal residence, or to such other address as any party may have furnished to the other in
writing and in accordance herewith, except that notices of changes of address will be effective
only upon receipt.







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          12. Governing Law. The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance with the substantive
laws of the State of Ohio and federal law, without giving effect to the principles of conflict of
laws of such State, except as expressly provided herein.




          13. Validity. If any provision of this Agreement or the application of any
provision hereof to any person or circumstance is held invalid or otherwise unenforceable, the
remainder of this Agreement and the application of such provision to any other person or
circumstance will not be affected, and the provision so held to be invalid or otherwise
unenforceable will be reformed to the extent (and only to the extent) necessary to make it
enforceable or valid.




          14. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in writing signed by
Executive and Company. No waiver by either party hereto at any time of any breach by the other
party hereto or compliance with any condition or provision of this Agreement to be performed by
such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations, oral or otherwise,
expressed or implied with respect to the subject matter hereof have been made by either party that
are not set forth expressly in this Agreement. The headings used in this Agreement are intended
for convenience or reference only and will not in any manner amplify, limit, modify or otherwise be
used in the construction or interpretation of any provision of this Agreement. References to
Sections are to Sections of this Agreement. Any reference in this Agreement to a provision of a
statute, rule or regulation will also include any successor provision thereto.




          15. Effect on Prior Agreements. This Agreement shall expressly supersede
and render null, void and invalid any prior severance pay agreement or agreements of a similar
nature previously entered into by and between Company and Executive with respect to the subject
matter of this Agreement, including but not limited to any Amended and Restated Severance Pay
Agreement, effective as of April 23, 1997, Severance Agreement between the Company and Executive
dated as of February 21, 2007, or Severance Pay Agreement effective as of a subsequent date but
prior to the effective date of this Agreement, between Company and Executive.




          16. Dispute Resolution. Any dispute between the parties under this
Agreement will be resolved (except as provided below) through informal arbitration by an arbitrator
selected under the rules of the American Arbitration Association for arbitration of employment
disputes (located in the city in which Company’s principal executive offices in the United States
are based) and the arbitration will be conducted in that location under the rules of said
Association. Each party will be entitled to present evidence and argument to the arbitrator. The
arbitrator will have the right only to interpret and apply the provisions of this Agreement and may
not change any of its provisions, except as expressly provided in Section 13. The arbitrator will
permit reasonable pre-hearing discovery of facts, to the extent necessary to establish a claim or a
defense to a claim, subject to supervision by the arbitrator. The determination of the arbitrator
will be conclusive and binding upon the parties and judgment upon the same may be entered in any
court having jurisdiction thereof. The arbitrator will give written notice to the parties stating
the arbitrator’s determination, and will furnish to each party a signed copy of such determination.
The expenses of arbitration will be borne equally by Company and Executive or as the arbitrator
equitably determines consistent with the application of state or federal law; provided, however,
that Executive’s share of such expenses will not exceed the maximum permitted by law. Any
arbitration or action pursuant to this Section 16 will be governed by and construed in accordance
with the substantive laws of the State of Ohio and, where applicable, federal law, without giving
effect to the principles of conflict of laws of such State.







-11-









 








          17. Survival. Notwithstanding any provision of this Agreement to the
contrary, the parties’ respective rights and obligations under Sections 3(d), 4, 5, 7, 9, 10(b),
16, 18 and 20 will survive any termination or expiration of this Agreement or the termination of
Executive’s employment following a Change in Control for any reason whatsoever.




          18. Beneficiaries. Executive will be entitled to select (and change, to the
extent permitted under any applicable law) a beneficiary or beneficiaries to receive any
compensation or benefit payable hereunder following Executive’s death, and may change such
election, in either case by giving Company written notice thereof in accordance with Section 11.
In the event of Executive’s death or a judicial determination of Executive’s incompetence,
reference in this Agreement to “Executive” will be deemed, where appropriate, to Executive’s
beneficiary, estate or other legal representative.




          19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which together will
constitute one and the same agreement.




          20. Section 409A of the Code.




               (a) The intent of the parties is that payments and benefits under this Agreement comply with
Section 409A of the Code (“Section 409A”) or are exempt therefrom and, accordingly, to the maximum
extent permitted, this Agreement shall be interpreted to be in compliance therewith. If Executive
notifies Company (with specificity as to the reason therefor) that Executive believes that any
provision of this Agreement (or of any award of compensation, including equity compensation or
benefits) would cause Executive to incur any additional tax or interest under Section 409A and
Company concurs with such belief or Company (without any obligation whatsoever to do so)
independently makes such determination, Company shall, after consulting with Executive, reform such
provision in a manner that is economically neutral to Company to attempt to comply with Section
409A through good faith modifications to the minimum extent reasonably appropriate to conform with
Section 409A.



               (b) A termination of employment shall not be deemed to have occurred for purposes of any
provision of this Agreement providing for the payment of any amounts or benefits subject to Section
409A upon or following a termination of employment unless such termination is also a “separation
from service” within the meaning of Section 409A and Executive is no longer providing services (at
a level that would preclude the occurrence of a “separation from service” within the meaning of
Section 409A) to Company or its affiliates as an employee or consultant, and for purposes of any
such provision of this Agreement, references to a “termination,” “termination of employment” or
like terms shall mean “separation from service” within the meaning of Section 409A.



               (c) With regard to any provision herein that provides for reimbursement of costs and expenses
or in-kind benefits, except as otherwise permitted by Section 409A: (i) the right to reimbursement
or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the
amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable
year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided,
in any other taxable year, and (iii) such payments shall be made on or before the last day of the
calendar year immediately following the calendar year in which the expense occurred, or such
earlier date as required hereunder.



               (d) With regard to any provision herein that provides for a gross-up payment or other
reimbursement for Executive’s taxes (or audit or litigation expenses attributable to the tax
gross-up or reimbursement), the applicable taxes or related expenses shall be reimbursed no later
than the earlier of (i) the date specified for payment under the Arrangement, or (ii) the end of
the calendar year immediately



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following the calendar year in which the applicable taxes are remitted or, in the case of
reimbursement of expenses incurred due to a tax audit or litigation to which there is no remittance
of taxes, the end of the calendar year following the calendar year in which the audit is completed
or there is a final and nonappealable settlement or other resolution of the litigation.




               (e) Notwithstanding anything contained in this Agreement to the contrary, if Executive is a
“specified employee,” as determined under Company’s policy for identifying specified employees on
the Termination Date, then to the extent required in order to comply with Section 409A, all
payments, benefits, tax gross-ups or other reimbursements paid or provided under this Agreement
that constitute a “deferral of compensation” within the meaning of Section 409A, that are provided
as a result of a “separation from service” within the meaning of Section 409A and that would
otherwise be paid or provided during the first six months following such Termination Date shall be
accumulated through and paid or provided (together with interest at the applicable federal rate
under Section 7872(f)(2)(A) of the Code in effect on the Termination Date), within 30 days after
the first business day that is more than six months after the date of his separation from service
(or, if Executive dies during such six-month period, within 90 days after Executive’s death).



               (f) Whenever a payment under this Agreement specifies a payment period with reference to a
number of days (e.g., “payment shall be made within 30 days after the Termination Date”), the
actual date of payment within the specified period shall be within the sole discretion of Company.
For purposes of Section 409A, Executive’s right to receive any “installment” payments pursuant to
this Agreement shall be treated as a right to receive a series of separate and distinct payments.



          IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered
as of the date first above written.




THE SHERWIN-WILLIAMS COMPANY




 





EXECUTIVE




 






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Annex A




EXCISE TAX GROSS-UP PROCEDURAL PROVISIONS



     (1) Subject to the provisions of Paragraph 5, all determinations required to be made
under Section 5 and Annex A, including whether an Excise Tax is payable by Executive and the amount
of such Excise Tax and whether a Gross-Up Payment is required to be paid by Company to Executive
and the amount of such Gross-Up Payment, if any, will be made by a nationally recognized accounting
firm or benefits consulting firm (the “National Firm”) selected by the Executive in Executive’s
sole discretion. Executive will direct the National Firm to submit its determination and detailed
supporting calculations to both Company and Executive within 30 calendar days after the Termination
Date, if applicable, and any such other time or times as may be requested by Company or Executive.
If the National Firm determines that any Excise Tax is payable by Executive, Company will pay the
required Gross-Up Payment to Executive within 5 business days after receipt of such determination
and calculations with respect to any Payment to Executive. If the National Firm determines that no
Excise Tax is payable by Executive with respect to any material benefit or amount (or portion
thereof), it will, at the same time as it makes such determination, furnish Company and Executive
with an opinion that Executive has substantial authority not to report any Excise Tax on
Executive’s federal, state or local income or other tax return with respect to such benefit or
amount. As a result of the uncertainty in the application of Section 4999 of the Code and the
possibility of similar uncertainty regarding applicable state or local tax law at the time of any
determination by the National Firm hereunder, it is possible that Gross-Up Payments that will not
have been made by Company should have been made (an “Underpayment”), consistent with the
calculations required to be made hereunder. In the event that Company exhausts or fails to pursue
its remedies pursuant to Paragraph 5 and Executive thereafter is required to make a payment of any
Excise Tax, Executive will direct the National Firm to determine the amount of the Underpayment
that has occurred and to submit its determination and detailed supporting calculations to both
Company and Executive as promptly as possible. Any such Underpayment will be promptly paid by
Company to, or for the benefit of, Executive within 5 business days after receipt of such
determination and calculations.



     (2) Company and Executive will each provide the National Firm access to and copies
of any books, records and documents in the possession of Company or Executive, as the case may be,
reasonably requested by the National Firm, and otherwise cooperate with the National Firm in
connection with the preparation and issuance of the determinations and calculations contemplated by
Paragraph 1. Any determination by the National Firm as to the amount of the Gross-Up Payment will
be binding upon Company and Executive.



     (3) The federal, state and local income or other tax returns filed by Executive will
be prepared and filed on a consistent basis with the determination of the National Firm with
respect to the Excise Tax payable by Executive. Executive will report and make proper payment of
the amount of any Excise Tax, and at the request of Company, provide to Company true and correct
copies (with any amendments) of Executive’s federal income tax return as filed with the Internal
Revenue Service and corresponding state and local tax returns, if relevant, as filed with the
applicable taxing authority, and such other documents reasonably requested by Company, evidencing
such payment. If prior to the filing of Executive’s federal income tax return, or corresponding
state or local tax return, if relevant, the National Firm determines that the amount of the
Gross-Up Payment should be reduced, Executive will within 5 business days pay to Company the amount
of such reduction.



     (4) The fees and expenses of the National Firm for its services in connection with
the determinations and calculations contemplated by Paragraph 1 at any time from the Effective Date
through Executive’s remaining lifetime, (or, if longer, through the 20th anniversary of the
Effective Date) will be borne by Company. If such fees and expenses are initially paid by
Executive, Company will reimburse Executive the full amount of such fees and expenses within 5
business days after receipt from Executive



 









 




of a statement therefor and reasonable evidence of Executive’s payment thereof; provided that
Executive shall have submitted all required documentation at least 14 days before the end of the
calendar year next following the calendar year in which such fees and expenses were incurred.




     (5) Executive will notify Company in writing of any claim by the Internal Revenue
Service or any other taxing authority that, if successful, would require the payment by Company of
a Gross-Up Payment. Such notification will be given as promptly as practicable but no later than
10 business days after Executive actually receives notice of such claim and Executive will further
apprise Company of the nature of such claim and the date on which such claim is requested to be
paid (in each case, to the extent known by Executive). Executive will not pay such claim prior to
the expiration of the 30-calendar-day period following the date on which Executive gives such
notice to Company or, if earlier, the date that any payment of amount with respect to such claim is
due. If Company notifies Executive in writing prior to the expiration of such period that it
desires to contest such claim, Executive will:



     (A) provide Company with any written records or documents in Executive’s possession
relating to such claim reasonably requested by Company;



     (B) take such action in connection with contesting such claim as Company reasonably
requests in writing from time to time, including without limitation accepting legal representation
with respect to such claim by an attorney competent in respect of the subject matter and reasonably
selected by Company;



     (C) cooperate with Company in good faith in order effectively to contest such claim;
and



     (D) permit Company to participate in any proceedings relating to such claim;


provided, however, that Company will bear and pay directly all costs and expenses
(including interest and penalties) incurred in connection with such contest and will indemnify and
hold harmless Executive, on an after-tax basis, for and against any Excise Tax or income or other
tax, including interest and penalties with respect thereto, imposed as a result of such
representation and payment of costs and expenses. Without limiting the foregoing provisions of
this Paragraph 5, Company will control all proceedings taken in connection with the contest of any
claim contemplated by this Paragraph 5 and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing authority in respect
of such claim (provided, however, that Executive may participate therein at Executive’s own cost
and expense) and may, at its option, either direct Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as Company determines; provided, however, that
if Company directs Executive to pay the tax claimed and sue for a refund, Company will, as
permitted by applicable law, advance the amount of such payment to Executive on an interest-free
basis and will indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or
income or other tax, including interest or penalties with respect thereto, imposed with respect to
such advance; and provided further, however, that any extension of the
statute of limitations relating to payment of taxes for the taxable year of Executive with respect
to which the contested amount is claimed to be due is limited solely to such contested amount.
Furthermore, Company’s control of any such contested claim will be limited to issues with respect
to which a Gross-Up Payment would be payable hereunder and Executive will be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.




     (6) If, after the receipt by Executive of an amount advanced by Company pursuant to
Paragraph 5, Executive receives any refund with respect to such claim, Executive will (subject to
Company’s complying with the requirements of Paragraph 5) promptly pay to Company the amount of



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such refund (together with any interest paid or credited thereon after any taxes applicable
thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to
Paragraph 5, a determination is made that Executive is not entitled to any refund with respect to
such claim and Company does not notify Executive in writing of its intent to contest such denial or
refund prior to the expiration of 30 calendar days after such determination, then such advance will
be forgiven and will not be required to be repaid and the amount of any such advance will offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid by Company to Executive
pursuant to Section 5 and this Annex C.




     (7) Notwithstanding any provision of this Agreement to the contrary, but giving
effect to any redetermination of the amount of Gross-Up payments otherwise required by this Annex
A, if (A) but for this sentence, Company would be obligated to make a Gross-Up Payment to Executive
and (B) the aggregate “present value” of the “parachute payments” to be paid or provided to
Executive under this Agreement or otherwise does not exceed 1.15 multiplied by three times
Executive’s “base amount,” then the payments and benefits to be paid or provided under this
Agreement will be reduced (or repaid to Company, if previously paid or provided) to the minimum
extent necessary so that no portion of any payment or benefit to Executive, as so reduced or
repaid, constitutes an “excess parachute payment.” For purposes of this Paragraph 7, the terms
“excess parachute payment,” “present value,” “parachute payment,” and “base amount” will have the
meanings assigned to them by Section 280G of the Code. The determination of whether any reduction
in or repayment of such payments or benefits to be provided under this Agreement is required
pursuant to this Paragraph 7 will be made at the expense of Company, if requested by Executive or
Company, by the National Firm. Appropriate adjustments will be made to amounts previously paid to
Executive, or to amounts not paid pursuant to this Paragraph 7, as the case may be, to reflect
properly a subsequent determination that Executive owes more or less Excise Tax than the amount
previously determined to be due. In the event that any payment or benefit intended to be provided
under this Agreement or otherwise is required to be reduced or repaid pursuant to this Paragraph 7,
the reduction shall be made by reducing the amounts to be paid or provided under the following
sections of this Agreement in the following order: (i) Section 4(a)(i), (ii) Section 4(c), (iii)
Section 4(a)(iii), and (iv) Section 4(a)(ii).



-16-









 





THE SHERWIN-WILLIAMS COMPANY




FORM B — AMENDED AND RESTATED

SEVERANCE AGREEMENT

(2.5 Times Base Pay Amount)



     THIS SEVERANCE AGREEMENT (this “Agreement”), dated as of                     ,            , is made and
entered into by and between THE SHERWIN-WILLIAMS COMPANY, an Ohio corporation (“Company”) and
                                         (“Executive”).



RECITALS:





	 	G.	 	Executive is a senior executive of Company or one or more of its Subsidiaries
(as defined below) and has made and is expected to continue to make major contributions
to the short- and long-term profitability, growth and financial strength of Company.
	 
	 	H.	 	Company recognizes that the possibility of a Change in Control (as defined
below) exists and that such possibility, and the uncertainty it may create among
management, may result in the distraction or departure of management personnel, to the
detriment of Company and its stockholders.
	 
	 	I.	 	Company desires to assure itself of both present and future continuity of
management and desires to establish certain minimum severance benefits for certain of
its senior executives, including Executive, applicable in the event of a Change in
Control.
	 
	 	J.	 	Company wishes to ensure that its senior executives are not unduly distracted
by the circumstances attendant to the possibility of a Change in Control and to
encourage the continued attention and dedication of such executives, including
Executive, to their assigned duties with Company.
	 
	 	K.	 	Company desires to provide additional inducement for Executive to continue to
remain in the employ of Company.
	 
	 	L.	 	Company and Executive are parties to a Severance Agreement dated as of February
21, 2007 (the “Effective Date”), which agreement is hereby amended, restated and
replaced in its entirety with this Agreement in order to comply with the final
regulations issued under Section 409A of the Code.





     NOW, THEREFORE, Company and Executive agree as follows:



     21. Certain Defined Terms. In addition to terms defined elsewhere herein,
the following terms have the following meanings when used in this Agreement with initial capital
letters:



               (a) “Base Pay” means Executive’s annual base salary rate as in effect from time to
time.



               (b) “Board” means the Board of Directors of Company.



               (c) “Cause” means that, prior to any termination pursuant to Section 3(a)(iii),
Executive shall have:



-17-









 






          (i) been convicted of a criminal violation involving, in each case, fraud,
embezzlement or theft in connection with Executive’s duties or in the course of Executive’s
employment with Company or any Subsidiary;




          (ii) committed intentional wrongful damage to property of Company or any
Subsidiary; or




          (iii) committed intentional wrongful disclosure of secret processes or
confidential information of Company or any Subsidiary;




and any such act shall have been demonstrably and materially harmful to Company. For
purposes of this Agreement, no act or failure to act on the part of Executive will be deemed
“intentional” if it was due primarily to an error in judgment or negligence, but will be
deemed “intentional” only if done or omitted to be done by Executive not in good faith and
without reasonable belief that Executive’s action or omission was in the best interest of
Company. Notwithstanding the foregoing, Executive will not be deemed to have been
terminated for “Cause” hereunder unless and until there shall have been delivered to
Executive a copy of a resolution duly adopted by the affirmative vote of not less than a
majority of the Board then in office (excluding Executive if Executive is then a member of
the Board) at a meeting of the Board called and held for such purpose, after reasonable
notice to Executive and an opportunity for Executive, together with Executive’s counsel (if
Executive chooses to have counsel present at such meeting), to be heard before the Board,
finding that, in the good faith opinion of the Board, Executive had committed an act
constituting “Cause” as herein defined and specifying the particulars thereof in reasonable
detail. Nothing herein will limit the right of Executive or Executive’s beneficiaries to
contest the validity or propriety of any such determination.



          (d) “Change in Control” means the occurrence during the Term of any of the following
events:




          (i) any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) (a “Person”) is or becomes the beneficial owner (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of the combined
voting power of the then-outstanding Voting Stock of Company; provided,
however, that:




     (1) for purposes of this Section 1(d)(i), the following acquisitions
will not constitute a Change in Control: (A) any acquisition of Voting Stock
directly from Company that is approved by a majority of the Incumbent
Directors, (B) any acquisition of Voting Stock by Company or any Subsidiary,
(C) any acquisition of Voting Stock by the trustee or other fiduciary
holding securities under any employee benefit plan (or related trust)
sponsored or maintained by Company or any Subsidiary, and (D) any
acquisition of Voting Stock by any Person pursuant to a Business Transaction
that complies with clauses (A), (B) and (C) of Section 1(d)(iii) below;




     (2) if any Person is or becomes the beneficial owner of 30% or more of
combined voting power of the then-outstanding Voting Stock as a result of a
transaction described in clause (A) of Section 1(d)(i)(1) above and such
Person thereafter becomes the beneficial owner of any additional shares of
Voting Stock representing 1% or more of the then-outstanding Voting Stock,
other than in an acquisition directly from Company that is approved by a
majority of the Incumbent Directors or other than as a result of a stock
dividend, stock split or similar transaction effected by Company in which
all holders of Voting Stock are



-18-









 






treated equally, such subsequent acquisition shall be treated as a
Change in Control;




     (3) a Change in Control will not be deemed to have occurred if a Person
is or becomes the beneficial owner of 30% or more of the Voting Stock as a
result of a reduction in the number of shares of Voting Stock outstanding
pursuant to a transaction or series of transactions that is approved by a
majority of the Incumbent Directors unless and until such Person thereafter
becomes the beneficial owner of any additional shares of Voting Stock
representing 1% or more of the then-outstanding Voting Stock, other than as
a result of a stock dividend, stock split or similar transaction effected by
Company in which all holders of Voting Stock are treated equally; and




     (4) if at least a majority of the Incumbent Directors determine in good
faith that a Person has acquired beneficial ownership of 30% or more of the
Voting Stock inadvertently, and such Person divests as promptly as
practicable but no later than the date, if any, set by the Incumbent Board a
sufficient number of shares so that such Person beneficially owns less than
30% of the Voting Stock, then no Change in Control shall have occurred as a
result of such Person’s acquisition; or




          (ii) a majority of the Board ceases to be comprised of Incumbent Directors;
or




          (iii) the consummation of a reorganization, merger or consolidation, or sale
or other disposition of all or substantially all of the assets of Company or the acquisition
of the stock or assets of another corporation, or other transaction (each, a “Business
Transaction”), unless, in each case, immediately following such Business Transaction (A) the
Voting Stock outstanding immediately prior to such Business Transaction continues to
represent (either by remaining outstanding or by being converted into voting stock of the
surviving entity or any parent thereof), more than 50% of the combined voting power of the
then outstanding shares of voting stock of the entity resulting from such Business
Transaction (including, without limitation, an entity which as a result of such transaction
owns Company or all or substantially all of Company’s assets either directly or through one
or more subsidiaries), (B) no Person (other than Company, such entity resulting from such
Business Transaction, or any employee benefit plan (or related trust) sponsored or
maintained by Company, any Subsidiary or such entity resulting from such Business
Transaction) beneficially owns, directly or indirectly, 30% or more of the combined voting
power of the then outstanding shares of voting stock of the entity resulting from such
Business Transaction, and (C) at least a majority of the members of the board of directors
of the entity resulting from such Business Transaction were Incumbent Directors at the time
of the execution of the initial agreement or of the action of the Board providing for such
Business Transaction; or




          (iv) approval by the shareholders of Company of a complete liquidation or
dissolution of Company, except pursuant to a Business Transaction that complies with clauses
(A), (B) and (C) of Section 1(d)(iii).




          (v) For purposes of this Section 1(d), the term “Incumbent Directors” shall
mean, 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



-19-









 






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.



          (e) “Code” means the Internal Revenue Code of 1986, as amended.




          (f) “Common Shares” means shares of common stock, no par value, of Company.




          (g) “Employee Benefits” means the perquisites, benefits and service credit for
benefits as provided under any and all employee retirement income and welfare benefit policies,
plans, programs or arrangements in which Executive is entitled to participate, including without
limitation any stock option, performance share, performance unit, stock purchase, stock
appreciation, savings, pension, supplemental executive retirement, or other retirement income or
welfare benefit, deferred compensation, incentive compensation, group or other life, health,
medical/hospital or other insurance (whether funded by actual insurance or self-insured by Company
or a Subsidiary), disability, salary continuation, expense reimbursement and other employee benefit
policies, plans, programs or arrangements that may now exist or any equivalent successor policies,
plans, programs or arrangements that may be adopted hereafter by Company or a Subsidiary, providing
benefits and service credit for benefits at least as great in the aggregate as are payable
thereunder immediately prior to a Change in Control.




          (h) “Exchange Act” means the Securities Exchange Act of 1934, as amended.





     (i) “Good Reason” means the occurrence of one or more of the following events:




     (ii) Failure to elect or reelect or otherwise to maintain Executive in the
office or the position, or a substantially equivalent or better office or position,
of or with Company and/or a Subsidiary (or any successor thereto by operation of law
or otherwise), as the case may be, which Executive held immediately prior to a
Change in Control, or the removal of Executive as a Director of Company and/or a
Subsidiary (or any successor thereto) if Executive shall have been a Director of
Company and/or a Subsidiary immediately prior to the Change in Control;




     (iii) Failure of Company to remedy any of the following within 10 calendar days
after receipt by Company of written notice thereof from Executive: (A) a
significant adverse change in the nature or scope of the authorities, powers,
functions, responsibilities or duties attached to the position with Company and any
Subsidiary which Executive held immediately prior to the Change in Control, (B) a
reduction in Executive’s Base Pay received from Company and any Subsidiary, (C) a
reduction in Executive’s Incentive Pay opportunity as compared with the Incentive
Pay opportunity most recently paid prior to the Change in Control, or (D) the
termination or denial of Executive’s rights to Employee Benefits or a reduction in
the scope or value thereof;




     (iv) The liquidation, dissolution, merger, consolidation or reorganization of
Company or the transfer of all or substantially all of its business and/or assets,
unless the successor or successors (by liquidation, merger, consolidation,
reorganization, transfer or otherwise) to which all or substantially all of its
business and/or assets have been transferred (by operation of law or otherwise)
assumed all duties and obligations of Company under this Agreement pursuant to
Section 10(a);




     (v) Company requires Executive to have Executive’s principal location of work
changed to any location that is in excess of 30 miles from the location thereof



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immediately prior to the Change in Control, or requires Executive to travel
away from Executive’s office in the course of discharging Executive’s
responsibilities or duties hereunder at least 20% more (in terms of aggregate days
in any calendar year or in any calendar quarter when annualized for purposes of
comparison to any prior year) than was required of Executive in any of the three
full years immediately prior to the Change in Control without, in either case,
Executive’s prior written consent; or




     (vi) Without limiting the generality or effect of the foregoing, any material
breach of this Agreement by Company or any successor thereto.



          (i) “Incentive Pay” means an annual bonus, incentive or other payment of
compensation, in addition to Base Pay, made or to be made in regard to services rendered in any
year pursuant to any bonus, incentive, profit-sharing, performance, discretionary pay or similar
agreement, policy, plan, program or arrangement (whether or not funded) of Company or a Subsidiary,
or any successor thereto. “Incentive Pay” does not include any stock option, stock appreciation,
stock purchase, restricted stock, private equity, long-term incentive or similar plan, program,
arrangement or grant, whether or not provided under a plan, program or arrangement described in the
preceding sentence.




          (j) “Severance Period” means the period of time commencing on the date of the first
occurrence of a Change in Control and continuing until the earlier of (i) the second anniversary of
the occurrence of the Change in Control, or (ii) Executive’s death;




          (k) “Subsidiary” means an entity in which Company directly or indirectly
beneficially owns 50% or more of the outstanding voting stock of such entity.




          (l) “Term” means the period commencing as of the Effective Date and expiring on the
close of business on December 31, 2008; provided, however, that (i) commencing on
January 1, 2008 and each January 1 thereafter, the term of this Agreement will automatically be
extended for an additional year unless, not later than September 30 of the immediately preceding
year, Company or Executive shall have given notice that Company or Executive, as the case may be,
does not wish to have the Term extended; (ii) if a Change in Control occurs during the Term, the
Term will expire on the last day of the Severance Period; and (iii) subject to Section 3(c), if,
prior to a Change in Control, the Executive ceases for any reason to be a corporate officer or
operating president of Company and any Subsidiary, thereupon without further action the Term shall
be deemed to have expired and this Agreement will immediately terminate and be of no further
effect; provided however, that this Section 1(m)(iii) shall not apply to terminate the Agreement
with respect to any Executive who had a Severance Pay Agreement or Amended and Restated Severance
Pay Agreement between Company and Executive in effect on February 20, 2007 and who entered into
this Agreement effective February 21, 2007. For purposes of this Section 1(m), the Executive shall
not be deemed to have ceased to be an employee of Company and any Subsidiary by reason of the
transfer of the Executive’s employment between Company and any Subsidiary, or among any
Subsidiaries.




          (m) “Termination Date” means the date on which Executive’s employment is terminated
(the effective date of which will be the date of termination, or such other date that may be
specified by Executive if the termination is pursuant to Section 3(b)).




          (n) “Voting Stock” means at any time, the then-outstanding securities entitled to
vote generally in the election of directors of Company.




     22. Operation of Agreement. This Agreement will be effective and binding
immediately upon its execution, but, anything in this Agreement to the contrary notwithstanding,
except as provided in Section 3(c), this Agreement will not be operative unless and until a Change
in Control occurs. Upon the



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occurrence of a Change in Control at any time during the Term, without further action, this
Agreement will become immediately operative.




     23. Termination Following a Change in Control.




     (a) In the event of the occurrence of a Change in Control, Executive’s employment may
be terminated by Company or a Subsidiary during the Severance Period (or pursuant to Section
3(c)) and Executive will be entitled to the benefits provided by Section 4 unless such
termination is the result of the occurrence of one or more of the following events:




     (i) Executive’s death;




     (ii) If Executive becomes permanently disabled within the meaning of, and
begins actually to receive disability benefits pursuant to, the long-term disability plan in
effect for, or applicable to, Executive immediately prior to the Change in Control; or




     (iii) Cause.




If, during the Severance Period, Executive’s employment is terminated by Company or any
Subsidiary other than pursuant to Section 3(a)(i), 3(a)(ii) or 3(a)(iii), Executive will be
entitled to the benefits provided by Section 4.



          (b) In the event of the occurrence of a Change in Control, Executive may terminate
employment with Company and any Subsidiary during the Severance Period for Good Reason with the
right to severance compensation as provided in Section 4 regardless of whether any other reason,
other than Cause, for such termination exists or has occurred, including without limitation other
employment.




          (c) Anything in this Agreement to the contrary notwithstanding, if a Change in
Control occurs and not more than 90 days prior to the date on which the Change in Control occurs,
Executive’s employment with Company is terminated by Company, such termination of employment will
be deemed to be a termination of employment immediately after a Change in Control for purposes of
determining whether Executive is entitled to benefits under this Agreement if Executive has
reasonably demonstrated that such termination of employment (i) was at the request of a third party
who has taken steps reasonably calculated to effect a Change in Control, or (ii) otherwise arose in
connection with or in anticipation of a Change in Control.




          (d) A termination of employment pursuant to Section 3(a), 3(b) or 3(c) will not
affect any rights that Executive may have pursuant to any agreement, policy, plan, program or
arrangement of Company or Subsidiary providing Employee Benefits, which rights will be governed by
the terms thereof. Notwithstanding the foregoing, any severance benefits received by Executive
pursuant to Section 4 of this Agreement shall be in lieu of any severance benefits to which
Executive would otherwise be entitled under any severance plan, program, policy or practice or
contract or agreement of Company or its affiliates (other than a retirement plan or other deferred
compensation arrangement, equity award, welfare benefit plan or any similar plan or agreement which
may contain provisions that become operative on, or that may incidentally refer to accelerated
vesting or accelerated payment upon, a termination of Executive’s employment).




     24. Severance Compensation.



          (a) If, following the occurrence of a Change in Control, Company or Subsidiary terminates
Executive’s employment during the Severance Period other than pursuant to Section 3(a)(i),
3(a)(ii) or 3(a)(iii), or if Executive terminates Executive’s employment pursuant to Section
3(b),




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Company will be obligated to make the following payments and provide the following benefits
to Executive.





          (i) Within ten business days after the occurrence of an event described in
Section 4(a) above (or in the case of an event described in Section 3(c), within 10 business
days after the Change in Control), Company shall pay, in a lump sum, an amount equal to two
and one-half (2-1/2) times the sum of (A) Base Pay (at the highest rate in effect for any
period within three years prior to the Termination Date), plus (B) an amount equal to the
greater of: (x) the average of the Incentive Pay earned or received by Executive during the
three year period immediately preceding the Termination Date, or (y) the Executive’s target
Incentive Pay for the year in which the Termination Date occurs (assuming the Executive
achieves 100% of any stated goals); provided, however, that if payment to
Executive would constitute a “deferral of compensation” under Section 409A of the Code,
Executive (or Executive’s beneficiary) will receive payment of the amounts described in this
Section 4(a)(i) upon the earlier of (i) six (6) months following Executive’s “separation
from service” with Company (as such phrase is defined in Section 409A of the Code) or (ii)
within 90 days after Executive’s death.




          (ii) For a period of eighteen (18) months following the Termination Date (the
“Continuation Period”), Company shall arrange to provide Executive, at no cost to Executive,
with medical and dental benefits substantially similar to those that Executive was receiving
or entitled to receive immediately prior to the Termination Date (or, if greater,
immediately prior to the reduction, termination, or denial described in Section 1(i)(ii)).
The Continuation Period shall be considered to be the period during which Executive shall be
eligible for continuation coverage under Section 4980B of the Code, and Company shall
reimburse Executive for the amount of the premiums for such continuation coverage;
provided, however that without otherwise limiting the purposes or effect of
Section 6, the benefits otherwise receivable by Executive pursuant to this Section 4(a)(ii)
will be reduced to the extent comparable welfare benefits are actually received by Executive
from another employer during the Continuation Period following Executive’s Termination Date,
and any such benefits actually received by Executive shall be reported by Executive to
Company. If any benefit described in this Section 4(a)(ii) is subject to tax, Company will
pay to Executive an additional amount such that after payment by Executive or Executive’s
dependents or beneficiaries, as the case may be, of all taxes so imposed, the recipient
retains an amount equal to such taxes.




          (iii) Executive shall be entitled to outplacement services by a firm selected
by Executive, at the expense of Company in an amount not to exceed ten percent (10%) of Base
Pay; provided, however, that all such outplacement services must be
completed, and all payments by Company must be made, by December 31 of the second calendar
year following the calendar year in which the Termination Date occurs.



          (b) Without limiting the rights of Executive at law or in equity, if Company fails
to make any payment or provide any benefit required to be made or provided hereunder on a timely
basis, Company will pay interest on the amount or value thereof at an annualized rate of interest
equal to the “prime rate” as set forth from time to time during the relevant period in The Wall
Street Journal “Money Rates” column. Such interest will be payable at the time the related
payment or benefit is paid to Executive. Any change in such prime rate will be effective on and as
of the date of such change.




          (c) Unless otherwise expressly provided by the applicable plan, program or
agreement, after the occurrence of a Change in Control, Company will pay in cash to Executive a
lump sum amount equal to the sum of (i) any unpaid Incentive Pay that would have been earned,
accrued, allocated or awarded to Executive for any performance period ending prior to the Change in
Control (regardless of whether (x) payment of such compensation is contingent on the continuing
performance of






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services by Executive or (y) the bonus, incentive, profit-sharing, performance, discretionary
pay or similar agreement, policy, plan, program or arrangement pursuant to which such Incentive Pay
would otherwise be payable permits pro-ration), plus (ii) the value of any annual bonus or
long-term Incentive Pay (including, without limitation, incentive-based annual cash bonuses and
performance units, but not including any equity-based compensation or compensation provided under a
qualified plan) payable pursuant to any performance period that is outstanding on the date of the
Change in Control. Such payment will be made at the earlier of (x) the date prescribed for payment
pursuant to the applicable plan, program or agreement, and (y) within five business days after the
Change in Control. In the case of clauses (i) and (ii), any applicable vesting requirements will
be disregarded. In the case of clause (ii), the amount will be calculated at the greater of (1)
the plan target or payout rate and (2) the amount determined based on Company’s actual results
relative to the applicable performance criteria as if the performance period had ended on the date
of the Change in Control, which amount will be prorated on the basis of the number of days of
Executive’s participation during the applicable performance period to which the incentive pay
related divided by the aggregate number of days in such performance period, taking into account
service rendered through the payment date.




     25. Certain Additional Payments by the Company.



          (a) Anything in this Agreement to the contrary notwithstanding, but subject to
Paragraph 7 of Annex A, in the event that this Agreement becomes operative and it is determined (as
hereafter provided) that any payment (other than the Gross-Up payments provided for in this Section
5 and Annex A) or distribution by Company or any of its affiliates to or for the benefit of
Executive, whether paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or
arrangement, including without limitation any stock option, performance share, performance unit,
stock appreciation right or similar right, or the lapse or termination of any restriction on or the
vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the excise tax
imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being
considered “contingent on a change in ownership or control” of Company, within the meaning of
Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by
state or local law, or any interest or penalties with respect to such tax (such tax or taxes,
together with any such interest and penalties, being hereafter collectively referred to as the
“Excise Tax”), then Executive will be entitled to receive an additional payment or payments
(collectively, a “Gross-Up Payment”); provided, however, that no Gross-up Payment will be made with
respect to the Excise Tax, if any, attributable to (i) any incentive stock option, as defined by
Section 422 of the Code (“ISO”) granted prior to the execution of this Agreement, or (ii) any stock
appreciation or similar right, whether or not limited, granted in tandem with any ISO described in
clause (i). The Gross-Up Payment will be in an amount such that, after payment by Executive of all
taxes (including any interest or penalties imposed with respect to such taxes), including any
Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payment.




          (b) The obligations set forth in Section 5(a) will be subject to the procedural provisions
described in Annex A.







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     26. No Mitigation Obligation. Company hereby acknowledges that it will be
difficult and may be impossible for Executive to find reasonably comparable employment following
Termination Date. Accordingly, the payment of the severance compensation by Company to Executive
in accordance with the terms of this Agreement is hereby acknowledged by Company to be reasonable,
and Executive will not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise, nor will any profits, income, earnings or other
benefits from any source whatsoever create any mitigation, offset, reduction or any other
obligation on the part of Executive hereunder or otherwise.



     27. Legal Fees and Expenses.



          (a) It is the intent of Company that Executive not be required to incur legal fees and the
related expenses associated with the interpretation, enforcement or defense of Executive’s rights
in connection with any dispute arising under this Agreement because the cost and expense thereof
would substantially detract from the benefits intended to be extended to Executive hereunder.
Accordingly, if it should appear to Executive that Company has failed to comply with any of its
obligations under this Agreement or in the event that Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable, or institutes any
proceeding designed to deny, or to recover from, Executive the benefits provided or intended to be
provided to Executive hereunder, Company irrevocably authorizes Executive from time to time to
retain counsel of Executive’s choice, at the expense of Company as hereafter provided, to advise
and represent Executive in connection with any such dispute or proceeding. Notwithstanding any
existing or prior attorney-client relationship between Company and such counsel, Company
irrevocably consents to Executive’s entering into an attorney-client relationship with such
counsel, and in that connection Company and Executive agree that a confidential relationship will
exist between Executive and such counsel. Without respect to whether Executive prevails, in whole
or in part, in connection with any of the foregoing, Company will pay and be solely financially
responsible for any and all attorneys’ and related fees and expenses incurred by Executive at any
time from the Effective Date through Executive’s remaining lifetime, (or, if longer, through the
20th anniversary of the Effective Date) in connection with any of the foregoing. Such payments will
be made within five business days after delivery of Executive’s written requests for payment,
accompanied by such evidence of fees and expenses incurred as Company may reasonably require;
provided that Executive shall have submitted all required documentation at least 14 days before the
end of the calendar year next following the calendar year in which such fees and expenses were
incurred.




          (b) In order to secure the benefits to be received by Executive pursuant to this Agreement and
similar arrangements with other executives, Company shall establish one or more trust funds (the
“Trust”). Company will deposit in such Trust, within five (5) business days after the occurrence
of an event that in the reasonable opinion of the Board will likely result in a Change in Control,
an amount equal to approximately the maximum aggregate benefits that could be payable to Executive
under the terms of this Agreement; provided, however, that (i) the Trust shall not be funded if the
funding thereof would result in taxable income to Executive by reason of Section 409A(b) of the
Code; and (ii) in no event shall any Trust assets at any time be located or transferred outside of
the United States, within the meaning of Section 409A(b) of the Code. Any funds which may be
placed into the Trust under this Agreement shall continue for all purposes to be a part of the
general funds of Company subject to the claims of Company’s creditors in the event of Company’s
insolvency and no person shall by virtue of this Agreement have any interest in such funds. To the
extent that any person acquires a right to receive payments from Company under this Agreement, such
rights shall be no greater than the right of any unsecured general creditor of Company. Executive
shall be entitled to receive distributions from the funds held in the Trust pursuant to the terms
and conditions of this Agreement and the agreement establishing the Trust between Company and the
trustee. If prior to the date of a Change in Control, the Board has actual knowledge that all
third parties have abandoned or terminated their efforts to effect a Change in Control and a Change
in Control at that time is unlikely and the Board so advises Executive,






-25-









 







the trust funds and interest earned thereon, if any, shall be returned to Company by the trustee.
Notwithstanding the provisions of this Section 6(b), failure by Company to place such funds in
Trust in no way relieves Company from its financial obligations and responsibilities to Executive
under the terms of this Agreement.




          (c) All benefits to be paid pursuant to this Agreement, including any amounts paid pursuant to
Section 6(a) which were not paid through the Trust established pursuant to Section 6(b), shall be
paid from the general assets of the Company.




     28. Employment Rights. Nothing expressed or implied in this Agreement will
create any right or duty on the part of Company or Executive to have Executive remain in the
employment of Company or any Subsidiary prior to or following any Change in Control.



     29. Withholding of Taxes. Company may withhold from any amounts payable
under this Agreement all federal, state, city or other taxes as Company is required to withhold
pursuant to any applicable law, regulation or ruling.



     30. Successors and Binding Agreement.



          (a) Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of the business or assets
of Company, by agreement in form and substance reasonably satisfactory to Executive, expressly to
assume and agree to perform this Agreement in the same manner and to the same extent Company would
be required to perform if no such succession had taken place. This Agreement will be binding upon
and inure to the benefit of Company and any successor to Company, including without limitation any
persons acquiring directly or indirectly all or substantially all of the business or assets of
Company whether by purchase, merger, consolidation, reorganization or otherwise (and such successor
will thereafter be deemed the “Company” for the purposes of this Agreement), but will not otherwise
be assignable, transferable or delegable by Company.




          (b) This Agreement will inure to the benefit of and be enforceable by Executive’s personal or
legal representatives, executors, administrators, successors, heirs, distributees and legatees.




          (c) This Agreement is personal in nature and neither of the parties hereto will, without the
consent of the other, assign, transfer or delegate this Agreement or any rights or obligations
hereunder except as expressly provided in Sections 10(a) and 10(b). Without limiting the
generality or effect of the foregoing, Executive’s right to receive payments hereunder will not be
assignable, transferable or delegable, whether by pledge, creation of a security interest, or
otherwise, other than by a transfer by Executive’s will or by the laws of descent and distribution
and, in the event of any attempted assignment or transfer contrary to this Section 10(c), Company
will have no liability to pay any amount so attempted to be assigned, transferred or delegated.




     31. Notices. For all purposes of this Agreement, all communications,
including without limitation notices, consents, requests or approvals, required or permitted to be
given hereunder will be in writing and will be deemed to have been duly given when hand delivered
or dispatched by electronic facsimile transmission (with receipt thereof orally confirmed), or five
business days after having been mailed by United States registered or certified mail, return
receipt requested, postage prepaid, or three business days after having been sent by a nationally
recognized overnight courier service such as FedEx or UPS, addressed to Company (to the attention
of the Secretary of Company) at its principal executive office and to Executive at Executive’s
principal residence, or to such other address as any party may have furnished to the other in
writing and in accordance herewith, except that notices of changes of address will be effective
only upon receipt.



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     32. Governing Law. The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance with the substantive
laws of the State of Ohio and federal law, without giving effect to the principles of conflict of
laws of such State, except as expressly provided herein.



     33. Validity. If any provision of this Agreement or the application of any
provision hereof to any person or circumstance is held invalid or otherwise unenforceable, the
remainder of this Agreement and the application of such provision to any other person or
circumstance will not be affected, and the provision so held to be invalid or otherwise
unenforceable will be reformed to the extent (and only to the extent) necessary to make it
enforceable or valid.



     34. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in writing signed by
Executive and Company. No waiver by either party hereto at any time of any breach by the other
party hereto or compliance with any condition or provision of this Agreement to be performed by
such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations, oral or otherwise,
expressed or implied with respect to the subject matter hereof have been made by either party that
are not set forth expressly in this Agreement. The headings used in this Agreement are intended
for convenience or reference only and will not in any manner amplify, limit, modify or otherwise be
used in the construction or interpretation of any provision of this Agreement. References to
Sections are to Sections of this Agreement. Any reference in this Agreement to a provision of a
statute, rule or regulation will also include any successor provision thereto.



     35. Effect on Prior Agreements. This Agreement shall expressly supersede
and render null, void and invalid any prior severance pay agreement or agreements of a similar
nature previously entered into by and between Company and Executive with respect to the subject
matter of this Agreement, including but not limited to any Amended and Restated Severance Pay
Agreement, effective as of April 23, 1997, Severance Agreement between the Company and Executive
dated as of February 21, 2007, or Severance Pay Agreement effective as of a subsequent date but
prior to the effective date of this Agreement, between Company and Executive.



     36. Dispute Resolution. Any dispute between the parties under this
Agreement will be resolved (except as provided below) through informal arbitration by an arbitrator
selected under the rules of the American Arbitration Association for arbitration of employment
disputes (located in the city in which Company’s principal executive offices in the United States
are based) and the arbitration will be conducted in that location under the rules of said
Association. Each party will be entitled to present evidence and argument to the arbitrator. The
arbitrator will have the right only to interpret and apply the provisions of this Agreement and may
not change any of its provisions, except as expressly provided in Section 13. The arbitrator will
permit reasonable pre-hearing discovery of facts, to the extent necessary to establish a claim or a
defense to a claim, subject to supervision by the arbitrator. The determination of the arbitrator
will be conclusive and binding upon the parties and judgment upon the same may be entered in any
court having jurisdiction thereof. The arbitrator will give written notice to the parties stating
the arbitrator’s determination, and will furnish to each party a signed copy of such determination.
The expenses of arbitration will be borne equally by Company and Executive or as the arbitrator
equitably determines consistent with the application of state or federal law; provided, however,
that Executive’s share of such expenses will not exceed the maximum permitted by law. Any
arbitration or action pursuant to this Section 16 will be governed by and construed in accordance
with the substantive laws of the State of Ohio and, where applicable, federal law, without giving
effect to the principles of conflict of laws of such State.



     37. Survival. Notwithstanding any provision of this Agreement to the
contrary, the parties’ respective rights and obligations under Sections 3(d), 4, 5, 7, 9, 10(b),
16, 18 and 20 will survive any



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termination or expiration of this Agreement or the termination of Executive’s employment
following a Change in Control for any reason whatsoever.




     38. Beneficiaries. Executive will be entitled to select (and change, to the
extent permitted under any applicable law) a beneficiary or beneficiaries to receive any
compensation or benefit payable hereunder following Executive’s death, and may change such
election, in either case by giving Company written notice thereof in accordance with Section 11.
In the event of Executive’s death or a judicial determination of Executive’s incompetence,
reference in this Agreement to “Executive” will be deemed, where appropriate, to Executive’s
beneficiary, estate or other legal representative.



     39. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which together will
constitute one and the same agreement.



     40. Section 409A of the Code.



          (a) The intent of the parties is that payments and benefits under this Agreement comply with
Section 409A of the Code (“Section 409A”) or are exempt therefrom and, accordingly, to the maximum
extent permitted, this Agreement shall be interpreted to be in compliance therewith. If Executive
notifies Company (with specificity as to the reason therefore) that Executive believes that any
provision of this Agreement (or of any award of compensation, including equity compensation or
benefits) would cause Executive to incur any additional tax or interest under Section 409A and
Company concurs with such belief or Company (without any obligation whatsoever to do so)
independently makes such determination, Company shall, after consulting with Executive, reform such
provision in a manner that is economically neutral to Company to attempt to comply with Section
409A through good faith modifications to the minimum extent reasonably appropriate to conform with
Section 409A.




          (b) A termination of employment shall not be deemed to have occurred for purposes of any
provision of this Agreement providing for the payment of any amounts or benefits subject to Section
409A upon or following a termination of employment unless such termination is also a “separation
from service” within the meaning of Section 409A and Executive is no longer providing services (at
a level that would preclude the occurrence of a “separation from service” within the meaning of
Section 409A) to Company or its affiliates as an employee or consultant, and for purposes of any
such provision of this Agreement, references to a “termination,” “termination of employment” or
like terms shall mean “separation from service” within the meaning of Section 409A.




          (c) With regard to any provision herein that provides for reimbursement of costs and expenses
or in-kind benefits, except as otherwise permitted by Section 409A: (i) the right to reimbursement
or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the
amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable
year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided,
in any other taxable year, and (iii) such payments shall be made on or before the last day of the
calendar year immediately following the calendar year in which the expense occurred, or such
earlier date as required hereunder.




          (d) With regard to any provision herein that provides for a gross-up payment or other
reimbursement for Executive’s taxes (or audit or litigation expenses attributable to the tax
gross-up or reimbursement), the applicable taxes or related expenses shall be reimbursed no later
than the earlier of (i) the date specified for payment under the Arrangement, or (ii) the end of
the calendar year immediately following the calendar year in which the applicable taxes are
remitted or, in the case of reimbursement of expenses incurred due to a tax audit or litigation to
which there is no remittance of taxes, the end of the






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calendar year following the calendar year in which the audit is completed or there is a final and
nonappealable settlement or other resolution of the litigation.




          (e) Notwithstanding anything contained in this Agreement to the contrary, if Executive is a
“specified employee,” as determined under Company’s policy for identifying specified employees on
the Termination Date, then to the extent required in order to comply with Section 409A, all
payments, benefits, tax gross-ups or other reimbursements paid or provided under this Agreement
that constitute a “deferral of compensation” within the meaning of Section 409A, that are provided
as a result of a “separation from service” within the meaning of Section 409A and that would
otherwise be paid or provided during the first six months following such Termination Date shall be
accumulated through and paid or provided (together with interest at the applicable federal rate
under Section 7872(f)(2)(A) of the Code in effect on the Termination Date), within 30 days after
the first business day that is more than six months after the date of his separation from service
(or, if Executive dies during such six-month period, within 90 days after Executive’s death).




          (f) Whenever a payment under this Agreement specifies a payment period with reference to a
number of days (e.g., “payment shall be made within 30 days after the Termination Date”), the
actual date of payment within the specified period shall be within the sole discretion of Company.
For purposes of Section 409A, Executive’s right to receive any “installment” payments pursuant to
this Agreement shall be treated as a right to receive a series of separate and distinct payments.




     IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered
as of the date first above written.



	 	 	 	 	 	 
	 

	 	THE SHERWIN-WILLIAMS COMPANY	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 

	 	 

	 	 	 
	 	 	 	 	 	 
	 

	 	EXECUTIVE	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 

	 	 

	 	 	 






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Annex A




EXCISE TAX GROSS-UP PROCEDURAL PROVISIONS



     (1) Subject to the provisions of Paragraph 5, all determinations required to be made
under Section 5 and Annex A, including whether an Excise Tax is payable by Executive and the amount
of such Excise Tax and whether a Gross-Up Payment is required to be paid by Company to Executive
and the amount of such Gross-Up Payment, if any, will be made by a nationally recognized accounting
firm or benefits consulting firm (the “National Firm”) selected by the Executive in Executive’s
sole discretion. Executive will direct the National Firm to submit its determination and detailed
supporting calculations to both Company and Executive within 30 calendar days after the Termination
Date, if applicable, and any such other time or times as may be requested by Company or Executive.
If the National Firm determines that any Excise Tax is payable by Executive, Company will pay the
required Gross-Up Payment to Executive within 5 business days after receipt of such determination
and calculations with respect to any Payment to Executive. If the National Firm determines that no
Excise Tax is payable by Executive with respect to any material benefit or amount (or portion
thereof), it will, at the same time as it makes such determination, furnish Company and Executive
with an opinion that Executive has substantial authority not to report any Excise Tax on
Executive’s federal, state or local income or other tax return with respect to such benefit or
amount. As a result of the uncertainty in the application of Section 4999 of the Code and the
possibility of similar uncertainty regarding applicable state or local tax law at the time of any
determination by the National Firm hereunder, it is possible that Gross-Up Payments that will not
have been made by Company should have been made (an “Underpayment”), consistent with the
calculations required to be made hereunder. In the event that Company exhausts or fails to pursue
its remedies pursuant to Paragraph 5 and Executive thereafter is required to make a payment of any
Excise Tax, Executive will direct the National Firm to determine the amount of the Underpayment
that has occurred and to submit its determination and detailed supporting calculations to both
Company and Executive as promptly as possible. Any such Underpayment will be promptly paid by
Company to, or for the benefit of, Executive within 5 business days after receipt of such
determination and calculations.



     (2) Company and Executive will each provide the National Firm access to and copies
of any books, records and documents in the possession of Company or Executive, as the case may be,
reasonably requested by the National Firm, and otherwise cooperate with the National Firm in
connection with the preparation and issuance of the determinations and calculations contemplated by
Paragraph 1. Any determination by the National Firm as to the amount of the Gross-Up Payment will
be binding upon Company and Executive.



     (3) The federal, state and local income or other tax returns filed by Executive will
be prepared and filed on a consistent basis with the determination of the National Firm with
respect to the Excise Tax payable by Executive. Executive will report and make proper payment of
the amount of any Excise Tax, and at the request of Company, provide to Company true and correct
copies (with any amendments) of Executive’s federal income tax return as filed with the Internal
Revenue Service and corresponding state and local tax returns, if relevant, as filed with the
applicable taxing authority, and such other documents reasonably requested by Company, evidencing
such payment. If prior to the filing of Executive’s federal income tax return, or corresponding
state or local tax return, if relevant, the National Firm determines that the amount of the
Gross-Up Payment should be reduced, Executive will within 5 business days pay to Company the amount
of such reduction.



     (4) The fees and expenses of the National Firm for its services in connection with
the determinations and calculations contemplated by Paragraph 1 at any time from the Effective Date
through Executive’s remaining lifetime, (or, if longer, through the 20th anniversary of the
Effective Date)



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will be borne by Company. If such fees and expenses are initially paid by Executive, Company
will reimburse Executive the full amount of such fees and expenses within 5 business days after
receipt from Executive of a statement therefore and reasonable evidence of Executive’s payment
thereof; provided that Executive shall have submitted all required documentation at least 14 days
before the end of the calendar year next following the calendar year in which such fees and
expenses were incurred.




     (5) Executive will notify Company in writing of any claim by the Internal Revenue
Service or any other taxing authority that, if successful, would require the payment by Company of
a Gross-Up Payment. Such notification will be given as promptly as practicable but no later than
10 business days after Executive actually receives notice of such claim and Executive will further
apprise Company of the nature of such claim and the date on which such claim is requested to be
paid (in each case, to the extent known by Executive). Executive will not pay such claim prior to
the expiration of the 30-calendar-day period following the date on which Executive gives such
notice to Company or, if earlier, the date that any payment of amount with respect to such claim is
due. If Company notifies Executive in writing prior to the expiration of such period that it
desires to contest such claim, Executive will:



     (A) provide Company with any written records or documents in Executive’s possession
relating to such claim reasonably requested by Company;



     (B) take such action in connection with contesting such claim as Company reasonably
requests in writing from time to time, including without limitation accepting legal representation
with respect to such claim by an attorney competent in respect of the subject matter and reasonably
selected by Company;



     (C) cooperate with Company in good faith in order effectively to contest such claim;
and



     (D) permit Company to participate in any proceedings relating to such claim;


provided, however, that Company will bear and pay directly all costs and expenses
(including interest and penalties) incurred in connection with such contest and will indemnify and
hold harmless Executive, on an after-tax basis, for and against any Excise Tax or income or other
tax, including interest and penalties with respect thereto, imposed as a result of such
representation and payment of costs and expenses. Without limiting the foregoing provisions of
this Paragraph 5, Company will control all proceedings taken in connection with the contest of any
claim contemplated by this Paragraph 5 and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing authority in respect
of such claim (provided, however, that Executive may participate therein at Executive’s own cost
and expense) and may, at its option, either direct Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as Company determines; provided, however, that
if Company directs Executive to pay the tax claimed and sue for a refund, Company will, as
permitted by applicable law, advance the amount of such payment to Executive on an interest-free
basis and will indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or
income or other tax, including interest or penalties with respect thereto, imposed with respect to
such advance; and provided further, however, that any extension of the
statute of limitations relating to payment of taxes for the taxable year of Executive with respect
to which the contested amount is claimed to be due is limited solely to such contested amount.
Furthermore, Company’s control of any such contested claim will be limited to issues with respect
to which a Gross-Up Payment would be payable hereunder and Executive will be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.







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     (6) If, after the receipt by Executive of an amount advanced by Company pursuant to
Paragraph 5, Executive receives any refund with respect to such claim, Executive will (subject to
Company’s complying with the requirements of Paragraph 5) promptly pay to Company the amount of
such refund (together with any interest paid or credited thereon after any taxes applicable
thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to
Paragraph 5, a determination is made that Executive is not entitled to any refund with respect to
such claim and Company does not notify Executive in writing of its intent to contest such denial or
refund prior to the expiration of 30 calendar days after such determination, then such advance will
be forgiven and will not be required to be repaid and the amount of any such advance will offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid by Company to Executive
pursuant to Section 5 and this Annex C.



     (7) Notwithstanding any provision of this Agreement to the contrary, but giving
effect to any redetermination of the amount of Gross-Up payments otherwise required by this Annex
A, if (A) but for this sentence, Company would be obligated to make a Gross-Up Payment to Executive
and (B) the aggregate “present value” of the “parachute payments” to be paid or provided to
Executive under this Agreement or otherwise does not exceed 1.15 multiplied by three times
Executive’s “base amount,” then the payments and benefits to be paid or provided under this
Agreement will be reduced (or repaid to Company, if previously paid or provided) to the minimum
extent necessary so that no portion of any payment or benefit to Executive, as so reduced or
repaid, constitutes an “excess parachute payment.” For purposes of this Paragraph 7, the terms
“excess parachute payment,” “present value,” “parachute payment,” and “base amount” will have the
meanings assigned to them by Section 280G of the Code. The determination of whether any reduction
in or repayment of such payments or benefits to be provided under this Agreement is required
pursuant to this Paragraph 7 will be made at the expense of Company, if requested by Executive or
Company, by the National Firm. Appropriate adjustments will be made to amounts previously paid to
Executive, or to amounts not paid pursuant to this Paragraph 7, as the case may be, to reflect
properly a subsequent determination that Executive owes more or less Excise Tax than the amount
previously determined to be due. In the event that any payment or benefit intended to be provided
under this Agreement or otherwise is required to be reduced or repaid pursuant to this Paragraph 7,
the reduction shall be made by reducing the amounts to be paid or provided under the following
sections of this Agreement in the following order: (i) Section 4(a)(i), (ii) Section 4(c), (iii)
Section 4(a)(iii), and (iv) Section 4(a)(ii).




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