exv10w3






Exhibit 10.3




RPM INTERNATIONAL INC.




INDEMNIFICATION AGREEMENT FOR DIRECTORS, OFFICERS AND KEY

EMPLOYEES OF SPECIALTY PRODUCTS HOLDING CORP.



          THIS AGREEMENT is made, effective as of the 31st day of May, 2010, by and between RPM
International Inc., a Delaware corporation (the “Corporation”), and Stephen J. Knoop
(“Indemnitee”).




          WHEREAS, it is essential to the Corporation to retain and attract as Directors, Officers and
key employees the most capable persons available, such as Indemnitee;




          WHEREAS, the prevalence of corporate litigation subjects directors and officers to expensive
litigation risks and it is the policy of the Corporation to indemnify its Directors and/or Officers
so as to provide them with the maximum possible protection permitted by law;




          WHEREAS, due to the decision of the Corporation’s Specialty Products Holding Corp. subsidiary
(“SPHC”) and its subsidiaries to file for reorganization under chapter 11 of the Bankruptcy Code,
the Board of Directors deems it advisable to extend this indemnification policy to individuals who
will serve as Directors and/or Officers of SPHC and its subsidiaries, as well as to certain
employees of SPHC and/or its subsidiaries as determined by the Board of Directors (“Key
Employees”);




          WHEREAS, in addition, because the statutory indemnification provisions of the Delaware General
Corporation Law (the “DGCL”) expressly provide that they are non-exclusive, it is the policy of the
Corporation to indemnify Directors and Officers of the Corporation who have, on behalf of the
Corporation, entered into settlements of derivative suits provided they have not breached the
applicable statutory standard of conduct;




          WHEREAS, due to the decision of SPHC and its subsidiaries to file for reorganization under
Chapter 11 of the Bankruptcy Code, the Board of Directors deems it appropriate to extend this
policy to individuals who will serve as Directors, Officers or Key Employees of SPHC and/or any of
its subsidiaries;




          WHEREAS, Indemnitee does not regard the protection available under the Corporation’s Amended
and Restated By-laws (the “By-laws”), the corresponding charter documents of SPHC and its
subsidiaries, and insurance, if any, as adequate in the present circumstances, and considers it
necessary and desirable to his or her service to have adequate protection, and the Corporation
desires to provide such protection to induce Indemnitee to serve in such capacity;




          WHEREAS, on or prior to the date hereof, Indemnitee began serving as a Director, Officer or
Key Employee of SPHC and/or one or more of its subsidiaries, and the Corporation desires to protect
Indemnitee for any and all service in such capacity; and




          WHEREAS, the DGCL provides that indemnification of directors, officers and employees of a
corporation may be authorized by agreement, and thereby contemplates that contracts of this nature
may be entered into between the Corporation and Indemnitee;




 









 





          NOW, THEREFORE, for good and valuable consideration, the adequacy of which is hereby
acknowledged, the Corporation and Indemnitee do hereby agree as follows:




          1. Agreement to Serve. Indemnitee agrees to serve or continue to serve as a Director
and/or Officer of the Corporation and/or a Director, Officer or Key Employee of SPHC and/or one or
more of its subsidiaries for so long as he or she is duly elected or appointed or until such time
as he or she tenders his or her resignation in writing or is otherwise terminated or properly
removed from office.




          The Corporation expressly confirms and agrees that it has entered into this agreement and
assumed the obligations imposed on the Corporation hereby in order to induce Indemnitee to continue
to serve as a Director and/or Officer of the Corporation and a Director, Officer or Key Employee of
SPHC and/or one or more of its subsidiaries, and the Corporation acknowledges that Indemnitee is
relying upon this agreement in continuing in such capacity.




          2. Definitions. As used in this Agreement:





          (a) The term “Proceeding” shall include any threatened, pending, or completed action,
suit, arbitration or proceeding, whether brought by or in the right of the Corporation or
otherwise and whether of a civil, criminal, administrative or investigative nature, in which
Indemnitee may be or may have been involved as a party or otherwise, by reason of the fact
that Indemnitee is or was a Director and/or Officer of the Corporation or a Director,
Officer or Key Employee of any subsidiary of the Corporation, by reason of any action taken
by Indemnitee or of any inaction on his or her part while acting in such capacity, or by
reason of the fact that he or she is or was serving at the request of the Corporation as a
director, officer, member or manager, partner, trustee, employee, agent, or fiduciary of
another corporation, domestic or foreign, nonprofit or for profit, a limited liability
company or a partnership, joint venture, trust or other enterprise; in each case whether or
not he or she is acting or serving in any such capacity at the time any liability or expense
is incurred for which indemnification or reimbursement can be provided under this Agreement.




          (b) The term “Expenses” shall include, without limitation, expenses of investigations,
judicial or administrative proceedings or appeals, attorneys’ fees and disbursements and any
expenses of establishing a right to indemnification under Paragraph 8 of this Agreement, but
shall not include the amount of judgments, fines or penalties against or settlements paid by
Indemnitee.




          (c) References to “other enterprise” shall include, without limitation, employee
benefit plans; references to “fines” shall include, without limitation, any excise tax
assessed with respect to any employee benefit plan; references to “serving at the request of
the Corporation” shall include, without limitation, any service as a Director and/or Officer
of the Corporation which imposes duties on, or involves services by, such Director and/or
Officer with respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he or she reasonably believed to be in the
best interests of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best interests of the Corporation” as
referred to in this Agreement.



2









 






          (d) Indemnitee shall be deemed to have acted in a manner “in or not opposed to the best
interests of the Corporation” as referred to in this Agreement with respect to any service
as a Director, Officer or Key Employee of SPHC or any of its subsidiaries if such person
acted in good faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of SPHC or its subsidiaries or if such action was otherwise required by
the Bankruptcy Court.



          3. Indemnity in Third-Party Proceedings. The Corporation shall indemnify Indemnitee
in accordance with the provisions of this Paragraph 3 if Indemnitee is a party to or threatened to
be made a party to or otherwise involved in any Proceeding (other than a Proceeding by or in the
right of the Corporation to procure a judgment in its favor) by reason of the fact that Indemnitee
is or was a Director and/or Officer of the Corporation or a Director, Officer or Key Employee of a
subsidiary of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, member or manager, partner, trustee, employee, agent, or fiduciary of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability company or a
partnership, joint venture, trust or other enterprise, against all Expenses, judgments,
settlements, fines and penalties, actually and reasonably incurred by Indemnitee in connection with
the defense or settlement of such Proceeding, but only if Indemnitee acted in good faith and in a
manner which he or she reasonably believed to be in or not opposed to the best interests of the
Corporation and, in the case of a criminal proceeding, had no reasonable cause to believe that his
or her conduct was unlawful. The termination of any such Proceeding by judgment, order of court,
settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not, of itself,
create a presumption that Indemnitee did not act in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interests of the Corporation, and with
respect to any criminal proceeding, that such person had reasonable cause to believe that his or
her conduct was unlawful.




          4. Indemnity for Expenses in Proceedings by or in the Right of the Corporation. The
Corporation shall indemnify Indemnitee in accordance with the provisions of this Paragraph 4 if
Indemnitee is a party to or threatened to be made a party to any Proceeding by or in the right of
the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was
a Director and/or Officer of the Corporation or a Director, Officer or Key Employee of a subsidiary
of the Corporation, or is or was serving at the request of the Corporation as a director, officer,
member or manager, partner, trustee, employee, agent, or fiduciary of another corporation, domestic
or foreign, nonprofit or for profit, a limited liability company or a partnership, joint venture,
trust or other enterprise, against all Expenses actually and reasonably incurred by Indemnitee in
connection with the defense of such Proceeding, but only if he or she acted in good faith and in a
manner which he or she reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification for Expenses shall be made under this Paragraph 4 in
respect of any claim, issue or matter as to which Indemnitee shall have been adjudged by court
order or judgment to be liable to the Corporation, unless and only to the extent that any court in
which such Proceeding was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such expenses as such court shall deem proper.




          5. Indemnity for Amounts Paid in Settlement in Proceedings by or in the Right of the
Corporation. The Corporation shall indemnify Indemnitee in accordance with the provisions of
this Paragraph 5 if Indemnitee is a party to or threatened to be made a party to any Proceeding by
or in the right of the Corporation to procure a judgment in its favor by reason of the fact that






3









 







Indemnitee is or was a Director and/or Officer of the Corporation or a Director, Officer or Key
Employee of a subsidiary of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, member or manager, partner, trustee, employee, agent, or fiduciary of
another corporation, domestic or foreign, nonprofit or for profit, a limited liability company or a
partnership, joint venture, trust or other enterprise, against all amounts actually and reasonably
paid in settlement by Indemnitee in connection with any such Proceeding, but only if he or she
acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to
the best interests of the Corporation.




          6. Indemnification of Expenses of Successful Party. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been successful on the merits or
otherwise in defense of any Proceeding or in defense of any claim, issue or matter therein,
including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses
incurred in connection therewith.




          7. Advances of Expenses. Any Expenses incurred by or on behalf of Indemnitee pursuant
to Paragraphs 3 or 4 in any Proceeding shall be paid by the Corporation in advance upon the written
request of Indemnitee if Indemnitee shall undertake to (a) repay such amount to the extent that it
is ultimately determined that Indemnitee is not entitled to indemnification hereunder, and (b)
reasonably cooperate with the Corporation concerning the action, suit or proceeding giving rise to
the Expenses. Any advances to be made under this Paragraph 7 shall be paid by the Corporation to
Indemnitee within 30 days following delivery of a written request therefor by Indemnitee to the
Corporation.




          8. Procedure. Any indemnification and advances provided for in Paragraph 3, 4, 5 and
6 shall be made no later than 30 days after receipt of the written request of Indemnitee. If a
claim under this Agreement, under any statute, or under any provision of the Corporation’s Amended
and Restated Certificate of Incorporation (the “Certificate”) or Amended and Restated By-laws (the
“By-laws”) or the corresponding charter documents of SPHC or any of its subsidiaries providing for
indemnification, is not paid in full by the Corporation within 30 days after a written request for
payment thereof has first been received by the Corporation, Indemnitee may, but need not, at any
time thereafter bring an action against the Corporation to recover the unpaid amount of the claim
and, subject to the other provisions of this Agreement, Indemnitee shall also be entitled to be
paid for the Expenses of bringing such action. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in connection with any action, suit
or proceeding in advance of its final disposition) that Indemnitee has not met the standards of
conduct which make it permissible under applicable law for the Corporation to indemnify Indemnitee
for the amount claimed, but the burden of proving such defense shall be on the Corporation and
Indemnitee shall be entitled to receive advance payments of expenses pursuant to Paragraph 7 hereof
unless and until such defense may be finally adjudicated by court order or judgment from which no
further right of appeal exists. It is the parties’ intention that if the Corporation contests
Indemnitee’s right to indemnification, the question of Indemnitee’s right to indemnification shall
be for the court or arbitrator, as applicable, to decide, and neither the failure of the
Corporation (including its Board of Directors, any committee or subgroup of the Board of Directors,
independent legal counsel or its stockholders) to have made a determination that indemnification of
Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of
conduct required by applicable law, nor an actual determination by the Corporation (including its
Board of Directors, any committee or subgroup of the Board of Directors, independent legal counsel,
or its stockholders) that Indemnitee




4









 




has not met such applicable standard of conduct, shall create a presumption that Indemnitee has or
has not met the applicable standard of conduct.




          9. Allowance for Compliance with SEC Requirements. Indemnitee acknowledges that the
Securities and Exchange Commission (“SEC”) has expressed the opinion that indemnification of
directors and officers from liabilities under the Securities Act of 1933 (“Act”), as amended, is
against public policy as expressed in the Act and, is therefore, unenforceable. Indemnitee hereby
agrees that it will not be a breach of this Agreement for the Corporation to undertake with the SEC
in connection with the registration for sale of any stock or other securities of the Corporation
from time to time that, in the event a claim for indemnification against such liabilities (other
than the payment by the Corporation of expenses incurred or paid by a director or officer of the
Corporation in the successful defense of any action, suit or proceeding) is asserted in connection
with such stock or other securities being registered, the Corporation will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a court of competent
jurisdiction on the question of whether or not such indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication of such issue. Indemnitee
further agrees that such submission to a court of competent jurisdiction shall not be a breach of
this Agreement.




          10. Indemnification Hereunder Not Exclusive. The indemnification provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee may be entitled
under the Certificate or the By-laws of the Corporation, the corresponding charter documents of
SPHC or any of its subsidiaries, any agreement, any vote of stockholders or disinterested
directors, the General Corporation Law of the State of Delaware, or otherwise, both as to action in
his or her official capacity and as to action in another capacity while holding such office.




          The indemnification under this Agreement for any action taken or not taken while serving in an
indemnified capacity shall continue as to Indemnitee even though he or she may have ceased to be a
Director and/or Officer of the Corporation or a Director, Officer or Key Employee of SPHC and/or
any of its subsidiaries and shall inure to the benefit of the heirs, executors and personal
representatives of Indemnitee.




          11. Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Corporation for some claims, issues or matters, but not as to
other claims, issues or matters, or for some or a portion of the Expenses, judgments, fines or
penalties actually and reasonably incurred by Indemnitee or amounts actually and reasonably paid in
settlement by Indemnitee in the investigation, defense, appeal or settlement of any Proceeding, but
not for the total amount thereof, the Corporation shall nevertheless indemnify Indemnitee for the
portion of such claims, issues or matters or Expenses, judgments, fines, penalties or amounts paid
in settlement to which Indemnitee is entitled.




          12. No Rights of Continued Employment. Nothing contained in this Agreement is
intended to create in Indemnitee any right to continued employment.




          13. Reimbursement to Corporation by Indemnitee; Limitation on Amounts Paid by
Corporation. To the extent Indemnitee has been indemnified by the Corporation hereunder and
later receives payments from any insurance carrier covering the same Expenses, judgments, fines,
penalties or amounts paid in settlement so indemnified by the Corporation hereunder, Indemnitee




5









 




shall immediately reimburse the Corporation hereunder for all such amounts received from the
insurer.




          Notwithstanding anything contained herein to the contrary, Indemnitee shall not be entitled to
recover amounts under this Agreement which, when added to the amount of indemnification payments
made to, or on behalf of, Indemnitee, under the Certificate or By-laws of the Corporation, in the
aggregate exceed the Expenses, judgments, fines, penalties and amounts paid in settlement actually
and reasonably incurred by Indemnitee (“Excess Amounts”). To the extent the Corporation has paid
Excess Amounts to Indemnitee, Indemnitee shall be obligated to reimburse the Corporation for such
Excess Amounts.




          Notwithstanding anything contained herein to the contrary, the Corporation shall not be
obligated under the terms of this Agreement, to indemnify Indemnitee:




          (a) or advance expenses to Indemnitee with respect to proceedings or claims initiated or
brought voluntarily by Indemnitee and not by way of defense, except with respect to Proceedings
brought to establish or enforce a right to indemnification under this Agreement or any other
statute or law or otherwise as required under Section 145 of the DGCL, but such indemnification or
advancement of expenses may be provided by the Corporation in specific cases if the Board of
Directors finds it appropriate;




          (b) if it is proved by final judgment in a court of law or other final adjudication to have
been based upon or attributable to the Indemnitee’s in fact having gained any personal profit or
advantage to which he or she was not legally entitled;




          (c) for any expenses incurred by Indemnitee with respect to any proceeding instituted by
Indemnitee to enforce or interpret this Agreement, if a court of competent jurisdiction determines
that each of the material assertions made by Indemnitee in such proceeding was not made in good
faith or was frivolous;




          (d) for a disgorgement of profits made from the purchase and sale by Indemnitee of securities
pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions
of any state statutory law or common law; or




          (e) for any judgment, fine or penalty which the Corporation is prohibited by applicable law
from paying as indemnity or for any other reason.




          14. Scope. Notwithstanding any other provision of this Agreement, the Corporation
hereby agrees to indemnify the Indemnitee to the fullest extent permitted by law, notwithstanding
that such indemnification is not specifically authorized by the other provisions of this Agreement,
the Corporation’s Certificate, the By-laws, or by statute. In the event of any change, after the
date of this Agreement, in any applicable law, statute, or rule which expands the right of a
Delaware corporation to indemnify a member of its board of directors or an officer, such change
shall be deemed to be within the purview of the Indemnitee’s rights and the Corporation’s
obligations under this Agreement. In the event of any change in any applicable law, statute or
rule which narrows the right of a Delaware corporation to indemnify a member of its board of
directors or an officer, such change, to the extent not otherwise required by such law, statute or
rule to be applied to this Agreement, shall have no effect on this Agreement or the parties’ rights
and obligations hereunder.




6









 





          15. Notice to Insurers. If, at the time of the receipt of a written request of
Indemnitee pursuant to Paragraph 8 hereof, the Corporation has director and officer liability
insurance in effect, the Corporation shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth in the respective policies.
The Corporation shall thereafter take all necessary or desirable action to cause such insurers to
pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.




          16. Selection of Counsel. In the event the Corporation shall be obligated under
Paragraphs 3, 4, 5, or 6 hereof to pay the expenses of any Proceeding against Indemnitee, the
Corporation, if appropriate, shall be entitled to assume the defense of such Proceeding, with
counsel approved by Indemnitee, which approval shall not be unreasonably withheld or delayed, upon
delivery to Indemnitee of written notice of the Corporation’s election to do so. After delivery of
such notice, approval of such counsel by Indemnitee and the retention of such counsel by the
Corporation, the Corporation will not be liable to Indemnitee under this Agreement for any fees of
counsel subsequently incurred by Indemnitee with respect to the same proceeding, provided that: (a)
Indemnitee shall have the right to employ his or her own counsel in any such proceeding at
Indemnitee’s expense; and (b) if (i) the employment of counsel by Indemnitee has been previously
authorized by the Corporation, or (ii) the Corporation shall not, in fact, have employed counsel to
assume the defense of such proceeding, then the fees and expenses of Indemnitee’s counsel shall be
at the expense of the Corporation.




          17. Arbitration. With the exception of the provisions of Paragraph 9 hereof, any
dispute, controversy or claim between Indemnitee and the Corporation arising out of or relating to
or concerning the provisions of this Agreement, shall be finally settled by arbitration in the City
of Cleveland, State of Ohio, before a single arbitrator agreeable to both parties. If the parties
cannot agree on a designated arbitrator, arbitration shall proceed in the City of Cleveland, State
of Ohio, before an arbitrator appointed by the American Arbitration Association (the “AAA”). In
either case, the arbitration proceeding shall commence promptly in accordance with the commercial
arbitration rules of the AAA then in effect and the arbitrator shall be an attorney other than an
attorney who has, or is associated with a firm having associated with it an attorney who has been
retained by or performed services for the Corporation or Indemnitee at any time during the five
years preceding the commencement of the arbitration. The award shall be rendered in such form that
judgment may be entered thereon in any court having jurisdiction thereof.




          18. Continuation of Rights and Obligations. All rights and obligations of the
Corporation and Indemnitee hereunder shall continue in full force and effect despite the subsequent
amendment or modification of the Corporation’s Certificate or By-Laws, as such are in effect on the
date hereof, and such rights and obligations shall not be affected by any such amendment or
modification, any resolution of directors or stockholders of the Corporation, or by any other
corporate action which conflicts with or purports to amend, modify, limit or eliminate any of the
rights or obligations of the Corporation and/or Indemnitee hereunder.




          19. Amendment and Modification. This Agreement may only be amended, modified or
supplemented by the written agreement of the Corporation and Indemnitee.




          20. Assignment. This Agreement shall not be assigned by the Corporation or Indemnitee
without the prior written consent of the other party thereto, except that the Corporation may
freely assign its rights and obligations under this Agreement to any subsidiary for whom




7









 




Indemnitee is serving as a director and/or officer thereof; provided, however, that no permitted
assignment shall release the assignor from its obligations hereunder. Subject to the foregoing,
this Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, including, without limitation, any
successor to the Corporation by way of merger, consolidation and/or sale or disposition of all or
substantially all of the capital stock of the Corporation.




          21. Saving Clause. If this Agreement or any portion thereof shall be invalidated on
any ground by any court of competent jurisdiction, the Corporation shall nevertheless indemnify
Indemnitee as to Expenses, judgments, fines, penalties and amounts paid in settlement with respect
to any Proceeding to the full extent permitted by any applicable portion of this Agreement that
shall not have been invalidated or by any other applicable law.




          22. Counterparts. This Agreement may be executed in two or more fully or partially
executed counterparts each of which shall be deemed an original binding the signer thereof against
the other signing parties, but all counterparts together shall constitute one and the same
instrument. Executed signature pages may be removed from counterpart agreements and attached to
one or more fully executed copies of this Agreement. The parties may execute and deliver this
Agreement by facsimile signature, which shall have the same binding effect as an original ink
signature.




          23. Notice. Indemnitee shall, as a condition precedent to his or her right to be
indemnified under this Agreement, give to the Corporation notice in writing as soon as practicable
of any claim made against him or her for which indemnity will or could be sought under this
Agreement. Notice to the Corporation shall be directed to the Corporation at P.O. Box 777, 2628
Pearl Road, Medina, Ohio 44258, Attention: General Counsel (or such other address as the
Corporation shall designate in writing to Indemnitee). Notice shall be deemed received three days
after the date postmarked if sent by prepaid mail, properly addressed. In addition, Indemnitee
shall give the Corporation such information and cooperation as it may reasonably require within
Indemnitee’s power.




          24. Applicable Law. All matters with respect to this Agreement, including, without
limitation, matters of validity, construction, effect and performance shall be governed by the
internal laws of the State of Delaware applicable to contracts made and to be performed therein
between the residents thereof (regardless of the laws that might otherwise be applicable under
principles of conflicts of law).




[Signature Page Follows]



8









 





     IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be duly executed and
signed as of the day and year first above written.



	 	 	 	 	 
	 	RPM INTERNATIONAL INC.




          THE “CORPORATION”

 	 
	 	By:  	/s/ Frank C. Sullivan	 
	 	 	Frank C. Sullivan 	 
	 	 	Chairman and Chief Executive Officer 	 
	 
	 	“INDEMNITEE”

 	 
	 	/s/ Stephen J. Knoop	 
	 
	 	 	Stephen J. Knoop 	 
	 	 	 	 
	 




9