EX-10.1



 







    Exhibit 10.1



 




    RPM INTERNATIONAL
    INC.

    AMENDED AND RESTATED INCENTIVE COMPENSATION PLAN

    (Effective
    as of October 4, 2007)
    



 



    Section 1.  Purpose.  The
    purpose of the RPM International Inc. Incentive Compensation
    Plan (the “Plan”) is to provide incentives for
    specified key employees whose performance in fulfilling the
    responsibilities of their positions can have a major impact on
    the profitability and future growth of RPM International Inc.
    (the “Company”) and its subsidiaries.



 



    Section 2.  Definitions.  For
    purposes of the Plan, the following terms shall have the
    meanings indicated:



 



    (a) “Aggregate Bonus Pool” shall mean,
    with respect to any Fiscal Year, an amount equal to one and
    one-half percent (1.5%) of the Income Before Income Taxes.



 



    (b) “Applicable Law” shall mean
    26 U.S.C. section 162(m) and regulations, rulings and
    notices promulgated thereunder by an agency of the federal
    government.



 



    (c) “Board” shall mean the Board of
    Directors of the Company.



 



    (d) “Bonus Award” shall mean the amount
    payable to a Covered Employee under the Plan in respect of any
    Fiscal Year.



 



    (e) “Committee” shall mean the
    Compensation Committee of the Board or such other committee
    designated by the Board to administer the Plan; provided
    however, that in any event the Committee shall be comprised of
    two or more directors each of whom shall be an “independent
    director” as defined in applicable rules or listing
    standards of the New York Stock Exchange, a “non-employee
    director” as defined in SEC
    Rule 16b-3
    and an “outside director” under Applicable Law.



 



    (f) “Covered Employee” shall mean, in
    respect of any Fiscal Year, an individual who is a covered
    employee under Applicable Law.



 



    (g) “Fiscal Year” shall mean any fiscal
    year of the Company.



 



    (h) “Income Before Income Taxes” shall
    mean, for any Fiscal Year, income before taxes as shown on the
    Company’s consolidated financial statements as audited by
    the Company’s independent registered public accounting firm.



 



    (i) “Plan” shall mean the RPM
    International Inc. Incentive Compensation Plan as
    set          
    forth in this document and as may be amended from time to time.



 



    Section 3.  Administration



 



    (a) Committee.  The Plan shall be
    administered by the Committee.



 



    (b) Committee Authority.  The Committee
    may establish such rules, not inconsistent with the provisions
    of the Plan, as it may deem necessary for the proper
    administration of the Plan, and may amend or revoke any rule so
    established. The Committee shall, subject to the provisions of
    the Plan, have sole and exclusive power and discretion to
    interpret, administer, implement and construe the Plan and full
    authority to make all determinations and decisions thereunder
    including, without limitation, the authority and discretion to:
    (i) determine the persons who are Covered Employees and
    select the Covered Employees who participate in the Plan,
    (ii) determine when Bonus Awards shall be granted,
    (iii) determine the portion of the Aggregate Bonus Pool
    subject to each Bonus Award, (iv) determine the terms and
    conditions of each Bonus Award, (v) make any adjustments
    pursuant to Section 4(b), and (vi) correct any defect,
    supply any omission and reconcile any inconsistency in or
    between the Plan, an Award and related documents.




    

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    (c) Committee Determinations.  All
    determinations by the Committee shall be made by the affirmative
    vote of a majority of its members, but any determination reduced
    to writing and signed by all of its members shall be fully as
    effective as if it had been made by a majority vote at a meeting
    duly called and held. All decisions by the Committee pursuant to
    the provisions of the Plan and all orders or resolutions of the
    Committee pursuant thereto shall be final, conclusive and
    binding on all persons, including the Covered Employees (and
    their heirs, legatees, beneficiaries, personal representatives,
    successors, permitted assigns or anyone else claiming through
    them), the Company, its subsidiaries and its stockholders.



 



    Section 4.  Bonus Awards.



 



    (a) Determination of Bonus
    Awards.  Subject to the next sentence, the Bonus
    Award of any Covered Employee for any Fiscal Year shall be such
    percentage share of the Aggregate Bonus Pool as determined in
    writing by the Committee no later than the ninetieth day of such
    Fiscal Year. Notwithstanding the preceding sentence:



 



    (i) the sum of the Bonus Awards of all Covered Employees
    for any Fiscal Year shall not exceed the Aggregate Bonus Pool
    for the Fiscal Year;



 



    (ii) the Bonus Award of any Covered Employee may be less
    (but not more) than the amount otherwise established under this
    Section 4(a) if, at any time prior to informing the Covered
    Employee of his Bonus Award, the Committee in its sole
    discretion so determines; and



 



    (iii) in no event shall a Bonus Award exceed $2,000,000.



 



    (b) Adjustment to Aggregate Bonus
    Pool.  Notwithstanding anything in this Plan to
    the contrary, the Aggregate Bonus Pool shall be adjusted to
    reflect any of the following events that may occur during the
    Fiscal Year that are not central to the Company’s
    operations: (i) asset gains or losses;
    (ii) litigation, claims, judgments or settlements;
    (iii) the effect of changes in tax law, accounting
    principles or other such laws or provisions affecting reported
    results; (iv) accruals for reorganization and restructuring
    programs; and (v) any extraordinary, unusual, non-recurring
    or non-cash items.



 



    (c) Payment of Bonus Awards.  Bonus Awards
    shall be paid no later than the 15th day of the third month
    following the end of the later of the Company’s Fiscal Year
    or the Covered Employee’s taxable year.



 



    (d) Certification of Bonus Awards.  Prior
    to paying any Bonus Award in respect of any Fiscal Year, the
    Committee shall certify in writing to the Board the amount of
    such Bonus Award and that such Bonus Award was determined in
    accordance with the terms of the Plan. For this purpose, a
    schedule of Bonus Awards as approved by the Committee and
    delivered to the Board shall be treated as a written
    certification.



 



    Section 5.  Effective Date and Stockholder
    Approval.  This amended and restated Plan shall
    become effective for the Fiscal Year commencing on June 1,
    2007; provided, however, that the amended and restated Plan
    shall be of no force and effect unless it is approved by the
    Company’s stockholders as provided under Applicable Law at
    the Company’s 2007 annual meeting of stockholders. If such
    approval is not obtained, the RPM International Inc. Incentive
    Compensation Plan will continue in effect without regard to the
    changes hereunder.



 



    Section 6.  General Provisions.



 



    (a) No Assignment.  No portion of any
    Bonus Award may be assigned or transferred otherwise than by
    will or by the laws of descent and distribution prior to the
    payment thereto.



 



    (b) Tax Withholding.  All payments of
    Bonus Awards shall be subject to withholding in respect of
    income and other taxes required by law to be withheld, in
    accordance with the Company’s customary procedures.



 



    (c) No Additional Rights.  A Covered
    Employee shall not have any right to be retained in the employ
    of the Company or any of its subsidiaries, and the right of the
    Company or any such subsidiary to dismiss or discharge any such
    Covered Employee or to terminate any arrangement pursuant to
    which such Covered Employee provides services to the Company or
    a subsidiary is specifically reserved.




    

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    (d) Liability.  The Board and the
    Committee shall be entitled to rely on the advice of counsel and
    other experts, including the independent registered public
    accounting firm of the Company. No member of the Board or of the
    Committee or any officers of the Company or its subsidiaries
    shall be liable for any act or failure to act under the Plan,
    except in circumstances involving bad faith on the part of such
    member or officer.



 



    (e) Other Compensation
    Arrangements.  Nothing contained in the Plan shall
    prevent the Company or any subsidiary or affiliate of the
    Company from adopting or continuing in effect other compensation
    arrangements, which arrangements may be either generally
    applicable or applicable only to designated individuals
    including Covered Employees.



 



    (f) Code Section 409A.  It is
    intended that this Plan and the Bonus Awards hereunder either be
    exempt from, or comply with, Internal Revenue Code
    Section 409A, and this Plan shall be so construed and
    administered. In the event that the Company reasonably
    determines that any Bonus Awards payable under this Plan may be
    subject to taxation under Section 409A, the Company, after
    consultation with the Covered Employee(s), shall have the
    authority to adopt, prospectively or retroactively, such
    amendments to this Plan or to take any other actions it
    determines in its sole discretion is necessary or appropriate
    to: (i) exempt the Bonus Awards payable under this Plan
    from Section 409A; or (ii) comply with the
    requirements of Section 409A. In no event, however, shall
    this section or any other provisions of this Plan be construed
    to require the Company to provide any
    gross-up for
    the tax consequences of any provisions of, or payments under,
    this Plan and the Company shall have no responsibility for tax
    consequences to a Covered Employee (or his or her beneficiary)
    resulting from the terms or operation of this Plan (whether or
    not such tax consequences were expected or foreseeable as of the
    date of the Plan and any agreement hereunder).



 



    Section 7.  Amendment and Termination of the
    Plan.  The Board may at any time terminate, in
    whole or in part, or from time to time, amend the Plan;
    provided, subject to Sections 3(b) & (c) and
    4(a)(ii), that no such amendment or termination shall adversely
    affect the rights of any Covered Employee with respect to the
    Bonus Awards announced by the Committee without the Covered
    Employee’s written consent. The Board may at any time and
    from time to time delegate to the Committee any or all of its
    authority under this Section 7. Any amendment to this Plan
    shall be approved by this Company’s stockholders if
    required under Applicable Law.




    

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