<PAGE> 1
As filed with the Securities and Exchange Commission on February 11, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-----------------
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-----------------
RPM, Inc.
___________________________________________________________________________
(Exact name of registrant as specified in its charter)
Ohio
___________________________________________________________________________
(State or other jurisdiction of incorporation or organization)
34-6550857
___________________________________________________________________________
(I.R.S. Employer Identification No.)
2628 Pearl Road, P.O. Box 777, Medina, Ohio 44258 (216) 273-5090
___________________________________________________________________________
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
<TABLE>
<S> <C>
Copy to:
Thomas C. Sullivan William A. Papenbrock, Esq.
RPM, Inc. Calfee, Halter & Griswold
P.O. Box 777 800 Superior Avenue - Suite 1800
Medina, Ohio 44258 Cleveland, Ohio 44114
(216) 273-5090 (216) 622-8200
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of the Registration Statement and after
compliance with applicable state and federal laws.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. _____
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. x
-----
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
each class of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share (1) price (1) fee
<S> <C> <C> <C> <C>
Common Shares,
without par value 3,560,184 shares $18.1875 $64,750,847 $22,328
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), using the average of the high and low sales
prices of the Common Shares of the Registrant as reported on the
NASDAQ National Market System on February 8, 1994.
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE> 3
Subject to completion; dated February 11, 1994
***************************************************************************
* *
* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A *
* REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED *
* WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT *
* BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE *
* REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT *
* CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY *
* NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH *
* SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO *
* REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH *
* STATE. *
* *
***************************************************************************
PROSPECTUS
RPM, INC.
3,560,184
COMMON SHARES
(without par value)
This Prospectus relates to the offer and sale of 3,560,184
Common Shares, without par value (the "Common Shares"), of RPM, Inc., an Ohio
corporation (the "Company"). All of the Common Shares being registered may be
offered and sold from time to time by certain selling shareholders of the
Company. See "Selling Shareholders." The Company will not receive any
proceeds from the sale of the Common Shares.
The Company's Common Shares are traded in the NASDAQ National
Market System under the symbol "RPOW." On January 31, 1994 the last reported
sale price for the Common Shares was $19.125 per share.
_______________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
_______________________________
No person has been authorized to give any information or to
make any representations other than those contained in this Prospectus
(including the material incorporated herein by reference) and, if given or
made, such information or representations must not be relied upon as having
been authorized by the Company or by any other person deemed to be an
underwriter. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy the shares covered by this Prospectus by anyone
in any state in which such offer or solicitation is not authorized or in which
the person making such offer or solicitation is not qualified to do so to
anyone to whom it is unlawful to make such offer or solicitation. Neither the
delivery of this Prospectus nor any sale made hereunder shall under any
circumstances create an implication that there has been no change in the
affairs of the Company since the date hereof.
_______________________________
The date of this Prospectus is February __, 1994
<PAGE> 4
THE COMPANY
RPM, Inc., an Ohio corporation, has its principal executive
offices at 2628 Pearl Road, P.O. Box 777, Medina, Ohio 44258, and its
telephone number is (216) 273-5090. As used in this Prospectus, the "Company"
shall refer to RPM, Inc. and its consolidated subsidiaries, unless the context
indicates otherwise.
Current Developments
On January 7, 1994, the Board of Directors declared a
quarterly cash dividend of $.13 per share, payable on January 31, 1994 to
shareholders of record on January 17, 1994.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission") which may be inspected and copied at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549. Such reports, proxy statements and
other information filed by the Company also are available for inspection and
copying at the regional offices of the Commission located at: 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661; and at Seven World Trade Center,
13th Floor, New York, New York 10048. Copies of such material also may be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 upon payment of prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company will provide, without charge, to each person to
whom this Prospectus is delivered, upon the written or oral request of such
person, a copy of any and all of the information that has been incorporated by
reference in this Prospectus (not including exhibits to the information that is
incorporated by reference unless such exhibits are specifically incorporated by
reference into the information that the Prospectus incorporates). Such request
should be directed to Paul A. Granzier, Esq., Secretary, RPM, Inc., 2628 Pearl
Road, P.O. Box 777, Medina, Ohio 44258, telephone (216) 273-5090.
The Company hereby incorporates the following documents in
this Prospectus by reference: (a) the Company's Annual Report on Form 10-K
for the fiscal year ended May 31, 1993; (b) the Company's Current Report on
Form 8-K dated July 31, 1993; (c) the Company's Quarterly Report on Form 10-Q
for the period ended August 30, 1993; (d) the Company's definitive Proxy
Statement filed with the Commission pursuant to Section 14 of the Exchange Act
in connection with the Annual Meeting of Shareholders held on October 8, 1993;
(e) the Company's Current Report on Form 8-K dated October 26, 1993, as
amended; and (f) the Company's Quarterly Report on Form 10-Q for the period
ended November 30, 1993.
All documents subsequently filed pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of this
offering shall be deemed to be incorporated by reference in this Prospectus and
to be a part hereof from the date of filing of such documents.
-2-
<PAGE> 5
SELLING SHAREHOLDERS
The Common Shares covered by this Prospectus are being offered
and sold by the shareholders of the Company listed below (the "Selling
Shareholders"). The Company issued and sold such Common Shares to the Selling
Shareholders on October 26, 1993 in connection with the Company's acquisition
of Stonhard, Inc., a Delaware corporation ("Stonhard"). In connection
therewith, the five shareholders of Stonhard received, in the aggregate,
3,560,184 Common Shares of the Company and Stonhard became a wholly owned
subsidiary of the Company. The 3,560,184 Common Shares owned by the Selling
Shareholders represent all of the Common Shares presently owned by them.
The following table shows as to each Selling Shareholder the
number of Common Shares owned by each Selling Shareholder prior to this
offering and the number of Common Shares being registered hereby:
<TABLE>
<CAPTION>
Shares Number
owned of
prior to Shares
Name offering registered
- ---- -------- ----------
<S> <C> <C>
H. Donald Stork1 . . . . . . . . . . . 1,928,267 1,928,267
Jeffrey M. Stork2 . . . . . . . . . . . 1,027,896 1,027,896
Brian D. Stork . . . . . . . . . . . . 201,649 201,649
Linda J. Stork . . . . . . . . . . . . 200,723 200,723
Lauren L. Flannery . . . . . . . . . . 201,649 201,649
--------- ---------
Total . . . . . . . . . 3,560,184(3) 3,560,184(3)
========= =========
<FN>
______________
1 H. Donald Stork formerly was a Director of Stonhard.
2 Upon the Company's acquisition of Stonhard, Stonhard entered into an Employment Agreement with Jeffrey M. Stork pursuant
to which he agreed to continue to serve as President of Stonhard until May 31, 1996. Mr. Stork also continues to serve
as a Director of Stonhard.
3 Includes 356,019 Common Shares, consisting of 192,827 Common Shares owned by H. Donald Stork, 102,790 Common Shares
owned by Jeffrey M. Stork, 20,165 Common Shares owned by Brian D. Stork, 20,072 Common Shares owned by Linda J. Stork, and
20,165 Common Shares owned by Lauren L. Flannery, being held in escrow until the earlier of (i) the date of the first
combined audit of the consolidated financial statements of Stonhard and the Company or (ii) October 26, 1994, by First
Fidelity Bank N.A. Pennsylvania (the "Escrow Agent") in accordance with an Escrow Agreement dated October 26, 1993 by and
among the Selling Shareholders, the Escrow Agent and the Company (the "Escrow Agreement"). The Common Shares held under
the Escrow Agreement are for the purpose of indemnifying the Company against losses resulting from any breach of the
representations, warranties and covenants contained in the Agreement and Plan of Reorganization dated October 1, 1993, as
amended, by and among the Company and the Selling Shareholders. As and in the manner provided for in the Escrow
Agreement, the Selling Shareholders may substitute suitable collateral for the Common Shares held in escrow.
</TABLE>
-3-
<PAGE> 6
Securities Agreement
Under the terms of a Securities Agreement dated October 26,
1993 by and among the Company and the Selling Shareholders (the "Securities
Agreement"), the Company agreed to use its best efforts to file a registration
statement with respect to the 3,560,184 Common Shares and to maintain the
effectiveness of such registration statement for a period of 24 months from the
date of this Prospectus. All of the registration and qualification fees,
printing and accounting fees, and fees and disbursements of the Company's legal
counsel incurred in connection with the registration of the Common Shares will
be paid by the Company; provided, however, that any underwriters' discounts and
commissions and brokerage or dealer commissions will be borne by the Selling
Shareholders. The 3,560,184 Common Shares may be offered and sold from time to
time within such 24-month period as determined by the Selling Shareholders.
The Securities Agreement grants the Company the right to be notified of the
terms, including price and identity of the purchaser, of any public or private
sale in one or a series of related transactions of all of the Common Shares
owned by a Selling Shareholder. As of the date of this Prospectus, the
Company is unaware of any plans or intentions of the Selling Shareholders with
respect to the amount of Common Shares any of them desire to sell or when any
of the Selling Shareholders would desire to sell their Common Shares, except
that, depending on market conditions, the Selling Shareholders may sell an as
yet undetermined number of Common Shares for the purposes of investment
diversification and to pay certain fees and expenses incurred by the Selling
Shareholders in connection with the acquisition of Stonhard by the Company.
MANNER OF OFFERING
Sales may be made in the over-the-counter market or otherwise
at prices and at terms then prevailing or at prices related to the then current
market price, or in negotiated transactions. The shares may be sold by one or
more of the following: (a) a block trade in which the broker or dealer so
engaged will attempt to sell the shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; and (c) ordinary brokerage transactions
and transactions in which the broker solicits purchasers. In effecting sales,
brokers or dealers engaged by the Selling Shareholders may arrange for other
brokers or dealers to participate. Brokers or dealers will receive commissions
or discounts from Selling Shareholders in amounts to be negotiated immediately
prior to sale. Such brokers or dealers may be deemed to be "underwriters"
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"), in connection with such sales. In addition, any securities covered by
this Prospectus which qualify for sale pursuant to Rule 144 may be sold under
Rule 144 rather than pursuant to this Prospectus.
The Company has advised the Selling Shareholders of their
obligations under the Exchange Act to avoid market manipulation of the Common
Shares (including, without limitation, their obligation not to purchase or
solicit purchases by others of any of the Common Shares during the two business
days preceding the commencement of any offers or sales of the Common Shares by
any of the Selling Shareholders) until the offering pursuant to this Prospectus
by all Selling Shareholders has been completed.
The Company also has advised the Selling Shareholders of their
obligations under the Securities Act to deliver copies of this Prospectus to
any purchaser of their Common Shares.
-4-
<PAGE> 7
DESCRIPTION OF COMMON SHARES
The following summary contains certain information regarding
the Company's Common Shares. This information is qualified in its entirety by
reference to the Company's Amended Articles of Incorporation, as amended (the
"Amended Articles"), and Chapter 1701 of the Ohio Revised Code.
The Company is incorporated under the laws of the State of
Ohio and its authorized capital stock consists of 100,000,000 Common Shares,
without par value. There were 56,731,837 shares outstanding as of January 31,
1994. All presently outstanding Common Shares of the Company to be sold by the
Selling Shareholders have been duly authorized and validly issued, and are
fully paid and nonassessable. Dividends, which may be declared at the
direction of the Board of Directors of the Company, must be paid equally on all
issued and outstanding Common Shares out of funds legally available therefor
subject to any applicable limitations contained in the Company's long-term loan
agreements. Upon liquidation, any excess net assets after all payments of
debts and costs must be paid to shareholders in proportion to the number of
Common Shares held. The Common Shares are not subject to preemptive rights,
conversion rights, redemption provisions or sinking fund provisions.
The holder of each Common Share is entitled to one vote on all
matters submitted to shareholders generally, except that shareholders have the
right to cumulate their votes for the election of Directors as permitted by
Ohio law. The Board of Directors is divided into three Classes with the term
of office of one of such Classes expiring in each year. At each Annual Meeting
of Shareholders the successors to the Directors of the Class whose term is
expiring at that time are elected to hold office for a term of three years.
Classification of the Board of Directors increases the number of Common Shares
necessary under cumulative voting to elect a Director in any given year.
Subject to the provisions of Articles Seventh and Eighth of the Company's
Amended Articles, as hereinafter summarized, all matters submitted to a vote of
shareholders are determined by a vote of the holders of a majority of the
outstanding shares entitled to vote thereon present in person or by proxy at a
meeting at which the vote was taken.
Article Seventh of the Company's Amended Articles provides, in
essence, that proposals (i) with respect to a merger, consolidation or
acquisition wherein the existing shareholders of the Company would hold less
than two-thirds of the voting power of the Company, or of the surviving or new
corporation, immediately after consummation of the transaction, and (ii) with
respect to a sale of substantially all of the assets of the Company, both
require adoption or approval by holders of shares representing two-thirds of
the voting power of the Company.
Article Eighth of the Company's Amended Articles provides, in
essence, that the affirmative vote of the holders of shares representing at
least 80% of the voting power of the Company is required to effect a merger,
consolidation, sale, lease or exchange of substantially all of the assets of
the Company where the other party to the transaction, including its
"affiliates" and "associated persons," as defined, is a holder, directly or
indirectly, of 5% or more of the outstanding shares of any class of the Company
entitled to vote at a meeting called to consider such a proposed transaction,
as of the record date used to determine the shareholders entitled to vote upon
such transaction. The Board of Directors, acting in good faith, shall make a
conclusive determination as to whether the proposed transaction requires an 80%
vote of shareholders. The requirement for approval by an 80% vote shall not be
applicable to proposals which received the formal approval of the Board of
Directors of the Company prior to the acquisition of the 5% share interest by
the other party, provided that with respect to any proposed transaction as to
which the 80% voting requirement would otherwise be applicable there also has
been a disclosure to all shareholders of any inducements in connection with the
proposed transaction offered to officers and Directors of the Company which are
not extended to all shareholders.
Ohio Law
As an Ohio corporation, the Company is subject to certain
provisions of Ohio law which may discourage or render more difficult an
unsolicited takeover of the Company. Among these are provisions that (i)
prohibit certain mergers, sales of assets, issuances or purchases of
securities, liquidation or dissolution, or reclassifications of the then
outstanding shares of an Ohio corporation involving certain holders of stock
representing 10% or more of the voting power, unless such transactions are
either approved by the Directors in office prior to the 10% shareholder
becoming such or involve a 10% shareholder which has been such for at least
three years and certain requirements related to the price and form of
consideration to be received by shareholders are met; and (ii)
-5-
<PAGE> 8
provide Ohio corporations with the right to recover profits realized under
certain circumstances by persons engaged in "greenmailing" or who otherwise
sell securities of a corporation within 18 months of proposing to acquire such
corporation.
In addition, pursuant to Section 1701.831 of the Ohio Revised
Code, the purchase of certain levels of voting power of the Company (one-fifth
or more, one-third or more, or a majority) can be made only with the prior
authorization of the holders of shares representing at least a majority of the
total voting power of the Company and the separate prior authorization of the
holders of shares representing at least a majority of the voting power held by
shareholders other than the proposed purchaser, officers of the Company and
Directors of the Company who are also employees.
VALIDITY OF SHARES
The validity of the Common Shares offered hereby will be
passed upon by Calfee, Halter & Griswold, 800 Superior Avenue, Suite 1800,
Cleveland, Ohio 44114. William A. Papenbrock, Esq., a partner of Calfee,
Halter & Griswold, is a Director of the Company and as of January 15, 1994
beneficially owned an aggregate of 8,554.9 Common Shares of the Company.
EXPERTS
The consolidated financial statements of the Company included
in its Annual Report on Form 10-K for the fiscal year ended May 31, 1993 have
been examined by Ciulla Stephens & Co., independent public accountants, as set
forth in their report included therein and incorporated herein by reference.
The consolidated financial statements referred to above are incorporated herein
by reference in reliance upon such report and upon the authority of such firm
as experts in accounting and auditing. The consolidated financial statements
of Stonhard for the year ended December 31, 1992, appearing in the Company's
Current Report on Form 8-K dated October 26, 1993, as amended, have been
audited by Haefele Flanagan & Co., independent auditors, as set forth in their
report included therein and incorporated herein by reference. The financial
statements referred to above are incorporated herein by reference in reliance
upon such report and upon the authority of such firm as experts in accounting
and auditing.
-6-
<PAGE> 9
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS.
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses payable
by the Registrant in connection with the sale and distribution of the Common
Shares registered hereby:
<TABLE>
<S> <C>
SEC Registration Fee . . . . . . . . . . . . . . . . . . . . . $23,007
Fees and Expenses of Counsel . . . . . . . . . . . . . . . . . 10,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . 3,993
-------
Total . . . . . . . . . . . . . . . . . . . . . . . $37,000
=======
</TABLE>
Item 15. Indemnification of Directors and Officers.
Ohio Revised Code Section 1701.13(E) (incorporated herein by
reference as Exhibit 99.1) provides that a corporation may indemnify or agree
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, by reason of the fact
that he or she is or was a Director, officer, employee or agent of the
corporation, against expenses actually incurred by such person in connection
with an action if he or she acted in good faith and in a manner not opposed to
the best interests of the corporation.
Article VI of the Registrant's Amended Code of Regulations
(incorporated herein by reference as Exhibit 99.2) provides for the
indemnification of Directors and officers against certain liabilities.
The Registrant has purchased a Directors and Officers
Liability Insurance Policy, which is filed as Exhibit 99.3 to the Registration
Statement and is incorporated herein by reference thereto.
The Registrant has entered into Indemnification Agreements
with each of its Directors and executive officers providing for additional
indemnification protection beyond that provided by the Directors and Officers
Liability Insurance Policy. A copy of the form of Indemnification Agreement is
filed as Exhibit 99.4 to the Registration Statement and is incorporated herein
by reference thereto. In the Indemnification Agreements, the Registrant has
agreed, subject to certain exceptions, to indemnify and hold harmless the
Director or executive officer to the maximum extent then authorized or
permitted by the provisions of the Registrant's Amended Code of Regulations,
the Ohio Revised Code, or by any amendment(s) thereto.
The Securities Agreement dated October 26, 1993 by and among
the Registrant and the Selling Shareholders provides that each of the Selling
Shareholders will, in connection with any Registration Statement filed by the
Registrant on behalf of such Selling Shareholders, indemnify the Registrant,
its Directors, officers, each person, if any, who controls the Registrant and
each agent for the Registrant (within the meaning of the Securities Act)
against certain liabilities arising out of the Registration Statement and the
related Prospectus. Such Securities Agreement is filed as Exhibit 4.4 to this
Registration Statement and is incorporated herein by reference thereto.
Item 16. Exhibits.
See the Exhibit Index at page E-1 of this Registration
Statement.
Item 17. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during the period in which offers or
sales are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities
Act of 1933;
II-1
<PAGE> 10
(ii) To reflect in the prospectus any
facts or event arising after the
effective date of the registration
statement (or the most recent
post-effective amendment thereof)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth
in the registration statement;
(iii) To include any material information
with respect to the plan of
distribution not previously
disclosed in the registration
statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(b) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(2) The undersigned Registrant hereby undertakes that for
the purpose of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted for Directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a Director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such Director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-2
<PAGE> 11
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED IN THE CITY OF CLEVELAND AND STATE OF OHIO, ON THE 3RD DAY OF
FEBRUARY, 1994.
RPM, Inc.
By /s/ Thomas C. Sullivan
-----------------------------------------
Thomas C. Sullivan, Chairman of
the Board of Directors and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below, constitutes and appoints Thomas C. Sullivan, James A.
Karman, Paul A. Granzier and William A. Papenbrock, or any one of them, his or
her true and lawful attorneys-in-fact and agents, with full power of
substitution for him or her and his or her name, place and stead, in any and
all capacities, to sign any or all amendments or post-effective amendments to
this Registration Statement, and to file the same, with all Exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys-in-fact and agents, or any one of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that such attorneys-in-fact and agents or any one
of them, or their or his substitute or substitutes may lawfully do or cause to
be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AND ON THE 3RD DAY OF FEBRUARY, 1994.
<TABLE>
<S> <C>
SIGNATURE TITLE
--------- -----
/s/ Thomas C. Sullivan Chairman of the Board of
- ------------------------------------- Directors and Chief Executive
Thomas C. Sullivan Officer (principal executive
officer)
/s/ James A. Karman President and Chief Operating
- ------------------------------------- Officer and a Director
James A. Karman
/s/ Frank C. Sullivan Vice President and Chief Financial Officer
- ------------------------------------- (principal financial officer)
Frank C. Sullivan
/s/ Glenn R. Hasman Vice President - Administration
- ------------------------------------- (principal accounting officer)
Glenn R. Hasman
</TABLE>
II-3
<PAGE> 12
<TABLE>
<S> <C>
SIGNATURE TITLE
--------- -----
/s/ Edward B. Brandon Director
- ----------------------------------
Edward B. Brandon
/s/ Lorrie Gustin Director
- ----------------------------------
Lorrie Gustin
/s/ Roy H. Holdt Director
- -------------------------------------------
Roy H. Holdt
Director
- ----------------------------------
E. Bradley Jones
/s/ Donald K. Miller Director
- ----------------------------------
Donald K. Miller
/s/ John H. Morris, Jr. Director
- -------------------------------------------
John H. Morris, Jr.
/s/ Kevin O'Donnell Director
- ----------------------------------
Kevin O'Donnell
/s/ William A. Papenbrock Director
- -------------------------------------------
William A. Papenbrock
/s/ Stephen Stranahan Director
- ----------------------------------
Stephen Stranahan
</TABLE>
373/06821VRD.400
II-4
<PAGE> 13
RPM, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION OF DOCUMENT PAGE NUMBER
- ------- ----------------------- -----------
<S> <C> <C>
4.1 Amended Articles of Incorporation, as amended, of the Registrant (A)
4.1.1 Amendment to Articles of Incorporation, as filed with the Ohio (B)
Secretary of State on October 9, 1992
4.2 Amended Code of Regulations of the Registrant (C)
4.3 Specimen Certificate of Common Shares, without par value, of the Registrant (D)
4.4 Securities Agreement dated October 26, 1993 by and among the Registrant and the
shareholders of Stonhard, Inc. (without exhibits)
4.5 Specimen LYONs Certificate (B)
4.6 Amended and Restated Credit Agreement, dated as of May 5, 1992, by and between
the Registrant, RPOW (France) S.A., RPOW (Nederland) B.V., Radiant Color, N.V.,
the Lenders and The First National Bank of Chicago, acting as Agent (E)
4.7 Guaranty Agreement by the Registrant to Bank of Delaware, Trustee, dated as of
December 1, 1975 (F)
4.8 Installment Sale Agreement, dated as of October 15, 1979, by and between
Department of Community Affairs and Economic Development and Gates
Engineering Company, Inc. (G)
4.8.1 Indenture of Trust and Mortgage, dated as of October 15, 1979, from Department
of Community Affairs and Economic Development to the Bank of Delaware, as Trustee (G)
4.9 Multicurrency Credit Agreement, dated as December 14, 1993, by and among the
Registrant, RPOW (France) S.A., RPM Europe B.V., Radiant Color, N.V., the Lenders
and Credit Lyonnais Chicago Branch, acting as Agent
4.10 Fiscal Agency Agreement, dated August 1, 1990, by and between the Registrant and
The Chase Manhattan Bank, N.A. with respect to $50,000,000 principal amount of 6-3/4%
Convertible Subordinated Debentures due 2005 (H)
4.11 Indenture, dated as of September 15, 1992, between the Registrant and The First
National Bank of Chicago, as trustee, with respect to the LYONs (B)
5.1 Opinion of Calfee, Halter & Griswold as to the validity of the shares
being offered
23.1 Consent of Calfee, Halter & Griswold (included in Exhibit 5.1)
23.2 Consent of Ciulla Stephens & Co.
23.3 Consent of Haefele Flanagan & Co.
24.1 Power of Attorney and related Certified Resolution
99.1 Ohio Revised Code Section 1701.13(E), pertaining to indemnification of Directors (I)
and officers
99.2 Article VI of the Registrant's Amended Code of Regulations (I)
99.3 Directors and Officers Liability Insurance Policy (I)
99.4 Form of Indemnification Agreement between the Registrant and each (I)
of its Directors and executive officers
<FN>
________________________
(A) Incorporated herein by reference to the appropriate exhibit to the Registrant's Annual Report on Form 10-K for the fiscal
year ended May 31, 1984 and the appropriate exhibit to the Registrant's Annual Report on Form 10-K for the fiscal year
ended May 31, 1987.
(B) Incorporated herein by reference to the appropriate exhibit to the Registrant's Statement on Form S-3 (Reg. No. 33-50868).
(C) Incorporated herein by reference to the appropriate exhibit to the Registrant's Annual Report on Form 10-K for the fiscal
year ended May 31, 1988.
</TABLE>
E-1
<PAGE> 14
(D) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Registration Statement on Form S-3 (Reg. No. 33-39849).
(E) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
May 31, 1992.
(F) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
May 31, 1989.
(G) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Quarterly Report on Form 10-Q for the three months ended
November 30, 1979.
(H) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
May 31, 1990.
(I) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Registration Statement on Form S-3 (Reg. No. 33-36396).
373/06821VRD.400
E-2
<PAGE> 1
Exhibit 4.4
SECURITIES AGREEMENT
THIS AGREEMENT is made as of the 26th day of October, 1993 by
and among RPM, INC., an Ohio corporation ("RPM"), H. DONALD STORK, JEFFREY M.
STORK, BRIAN D. STORK, LINDA J. STORK, and LAUREN L. FLANNERY, the stockholders
("Stockholder(s)") of Stonhard, Inc., a Delaware corporation ("Stonhard").
WITNESSETH:
WHEREAS, RPM and the Stockholders have entered into an
Agreement and Plan of Reorganization of even date herewith ("Reorganization
Agreement") pursuant to which the Stockholders are receiving RPM Common Shares,
without par value ("RPM Shares"), in exchange for their shares of Class A
Common Stock, par value $.01, in Stonhard (the "Reorganization"); and
WHEREAS, RPM and the Stockholders have agreed that the
issuance of the RPM Shares in the Reorganization shall be pursuant to the
"private offering" exemption from registration with the Securities and Exchange
Commission ("SEC") provided by Section 4(2) of the Securities Act of 1933, as
amended (the "Act"), and Rule 506 promulgated pursuant to the Act; and
WHEREAS, RPM and the Stockholders have agreed further that the
Stockholders shall have, under the terms and conditions herein set forth, the
right to require or cause RPM to register all
<PAGE> 2
of the RPM shares received by such Stockholders (the "Registrable RPM Shares")
with the SEC; and
WHEREAS, the Stockholders also desire that the
Reorganization be treated as a tax-free reorganization within the meaning
of Section 368(a) of the Internal Revenue Code of 1986, as amended; and
WHEREAS, RPM also desires that the Reorganization be treated
as a pooling-of-interest for accounting purposes;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein and in the Reorganization
Agreement, RPM and the Stockholders hereby agree as follows:
1. EXEMPTION FROM REGISTRATION UNDER SECTION 4(2) AND RULE 506.
In connection with each Stockholders' investment in the
Registrable RPM Shares, each Stockholder hereby represents, warrants, covenants
and agrees as follows:
1.1 ACCREDITED INVESTOR. Each Stockholder either is an
"Accredited Investor" as defined in Rule 501 promulgated pursuant to the Act or
has, either alone or with his or her purchaser representative, such knowledge
and experience in financial and business matters that he or she is capable of
evaluating the merits and risks of investment in the RPM Shares. Stockholders
Brian D. Stork, Linda J. Stork and Lauren L. Flannery each hereby appoint H.
Donald Stork as their purchaser representative, and H. Donald Stork hereby
accepts such appointment and agrees to act in good faith on behalf of the
Stockholders appointing them in their capacity as purchaser representative.
-2-
<PAGE> 3
1.2 INFORMATION RECEIVED. Each Stockholder, directly or
through his or her purchaser representative, has received a copy of (i) RPM's
Annual Report to Shareholders for the fiscal year ended May 31, 1993, (ii)
Proxy Statement for the October 8, 1993 annual meeting of RPM shareholders,
(iii) Annual Report on Form 10-K for the fiscal year ended May 31, 1993, as
filed with the SEC, (iv) Current Report on Form 8-K dated August 27, 1993 for
the Dynatron/Bondo Corporation acquisition, (v) Amendment No. 3 to Form S-3
Registration Statement, Registration No. 33-50868, dated September 23, 1992,
together with the final Prospectus dated September 23, 1992, (vi) Form S-3
Registration Statement, Registration No. 33-68222, together with a final
Prospectus dated September 7, 1993, (vii) a brief description of the RPM Shares
being offered, (viii) any material changes in RPM's affairs that are not
disclosed in the documents furnished pursuant to this Section 1.2, which
description, if any, is included in the copy of the letter attached hereto as
Exhibit A, and (ix) a description of the terms or arrangements materially
different from those for other Stonhard Stockholders, which description (unless
described in the Reorganization Agreement) is included in the copy of the
letter attached hereto as Exhibit A. No Stockholder has made a written request
to RPM that it make available to him any exhibits to any of the documents
listed in clauses (i) - (vi) above. Each Stockholder, directly or through his
or her purchaser representative, has had at a reasonable time prior to the date
of this Agreement the opportunity to ask questions of and receive answers from
RPM concerning the terms and conditions of the
-3-
<PAGE> 4
Reorganization, the Registrable RPM Shares and the business of RPM and to
obtain any additional information which RPM possesses or can acquire without
unreasonable effort or expense that each Stockholder has deemed necessary or
desirable to verify the accuracy of the information furnished pursuant to this
Section 1.2.
1.3 LIMITATIONS ON RESALE. Each Stockholder is aware
that the Registrable RPM Shares have not been registered under the Act and that
he or she must hold such shares indefinitely unless they are subsequently
registered under the Act or an exemption from such registration is available.
Each Stockholder is also aware that any sales of the Registrable RPM Shares
pursuant to SEC Rule 144 may be made only after the minimum two (2) year
holding period and subject to the limitations on volume and manner of sale set
forth therein and only if RPM satisfies the requirements therefor. Each
Stockholder is acquiring the Registrable RPM Shares for his or her own account,
for investment and not with a view to the distribution thereof and will not
sell, transfer or otherwise dispose of such Registrable RPM Shares unless a
registration statement filed with the SEC pursuant to the Act with respect
thereto is in effect or RPM shall have received an opinion of counsel
reasonably satisfactory to it to the effect that such registration is not
required. Each Stockholder acknowledges and agrees that the certificates
representing the Registrable RPM Shares to be received by him or her shall bear
a legend in the form set forth on Exhibit B hereto stating the substance of
such restrictions, as well as those provisions of Section 4 hereof, and that
RPM may issue stop transfer instructions to the transfer agent
-4-
<PAGE> 5
of RPM Shares to preclude any transfer in violation of such restrictions. Each
Stockholder further acknowledges that prior to execution and delivery of this
Agreement he or she received a written disclosure of the foregoing limitations
on resale of the Registrable RPM Shares and of the facts that the certificates
representing such shares will bear the above-referenced legend and that the
above-referenced stop transfer instructions will be issued as necessary. RPM
agrees to cause the restrictive legend referred to above to be removed from RPM
Share Certificates for any Stockholder who qualifies under Rule 144(k).
1.4 INVESTMENT DECISION. Based upon the information
delivered to each Stockholder pursuant to this Section 1, a thorough review of
this Agreement, the Reorganization Agreement, and the other agreements and
documents delivered in connection therewith (including the Exhibits and
Disclosure Schedules thereto), each Stockholder understands the terms and
conditions of the Reorganization and of the Registrable RPM Shares to the
extent necessary to make the investment decision required by this Agreement and
the Reorganization Agreement.
2. REGISTRATION RIGHTS.
2.1 REGISTRATION RIGHTS. From and after the date RPM
publicly announces financial results covering at least thirty (30) days of
combined operations of RPM and Standard as described in Section 4 of this
Agreement, if RPM shall receive a written request (or has previously received a
written request which has not been revoked) from Stockholders owning more than
25% of the Registrable RPM Shares that RPM file a registration statement under
the Act, or
-5-
<PAGE> 6
a similar document pursuant to any other statute then in effect corresponding
to the Act, covering the registration of at least 25% of the Registrable RPM
Shares, then RPM shall promptly notify the other Stockholders of such request
giving them not less than twenty (20) days to request to include all or any
portion of their Registrable RPM Shares in such registration and shall use its
best efforts to cause all Registrable RPM Shares that Stockholders have
requested be registered to be registered under the Act in a registration
intended to permit the offering of the Registrable RPM Shares continuously from
time to time (the "Shelf Registration Statement"). Whenever requested under
this Section 2.1 to use its best efforts to effect the registration of any
Registrable RPM Shares, RPM shall, as expeditiously as reasonably possible (i)
prepare and file with the SEC the Shelf Registration Statement with respect to
such Registrable RPM Shares and use its best efforts to cause such registration
statement to become and remain effective for a period of twenty-four (24)
months; provided, however, RPM shall in no event be obligated either to file
more than one (1) such registration statement in any given six (6) month period
or to cause any such registration to remain effective for more than twenty-
four (24) months (although RPM shall be obligated to keep such registration
effective for twenty-four (24) months), (ii) prepare and file with the SEC such
amendments and supplements to such registration statement and the Prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Act with respect to the disposition of all
securities covered by such registration
-6-
<PAGE> 7
statement whenever the Stockholder of such Registrable RPM Shares shall desire
to sell or dispose of same, (iii) furnish to the Stockholders such numbers of
copies of a Prospectus in conformity with the requirements of the Act, and such
other documents as they may reasonably request in order to facilitate the
disposition of the Registrable RPM Shares owned by them, and (iv) use its best
efforts to register and qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such jurisdictions
within the United States and Puerto Rico as shall be reasonably appropriate or
as required for the distribution of the securities covered by the registration
statement, and to do such other reasonable acts and things as may be required
of it to enable such Stockholder to consummate the public sale or other
disposition in such jurisdictions of the securities covered by such
registration statement; provided that RPM shall not be required in connection
therewith or as a condition thereto to qualify to do business where it is not
so qualified or to file a general consent to service of process in any such
states or jurisdictions where it has not previously done so. RPM shall be
obligated to effect only three (3) Shelf Registration Statements pursuant to
this Section 2.1; provided, however, that RPM shall only be required to effect
one (1) of such three (3) Shelf Registration Statements in a firm commitment
underwriting and participate thereunder pursuant to the terms of Section 2.2.1
hereof; and provided further that RPM shall have no obligation to register RPM
Shares previously registered or with respect to any request for registration
made by any
-7-
<PAGE> 8
Stockholder pursuant hereto unless such request is received by RPM before the
date thirty (30) months from the date hereof.
2.1.1 OTHER OBLIGATIONS. In the event the
Stockholders shall determine to sell any Registrable RPM
Shares in the one (1) permitted firm commitment underwriting, the Stockholders
so registering such shares and RPM hereby agree to mutually determine the
identity of such underwriter, which in any case shall have a national
distribution capability. RPM further agrees to provide such underwriter with
indemnification customary in firm commitment underwritings.
2.1.2 RPM'S OBLIGATION TO FURNISH OPINIONS. RPM
shall, at the request of any Stockholder requesting registration of RPM
Registrable Shares pursuant to this Section 2, on the date that such shares of
RPM Registrable Shares are delivered to an underwriter in a firm commitment
underwriting for sale pursuant to such registration, (1) an opinion, dated such
date, of the independent counsel representing RPM for the purposes of such
registration, addressed to the underwriters, stating in substance that such
registration statement has become effective under the Act and in substance that
(i) to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or threatened under the Act or any other
securities or Blue Sky laws (such counsel being entitled to rely in respect of
matters of fact upon certificates of officers of RPM, provided that such
counsel shall state that they believe that both the underwriters and they are
justified in relying upon such certificates); and (ii)
-8-
<PAGE> 9
the registration statement, the related Prospectus, and each amendment or
supplement thereto, comply as to form in all material respects with the
requirements of the Act and the applicable rules and regulations of the SEC
thereunder (except that such counsel need express no opinion as to financial
statements, related schedules and other financial and statistical data
contained therein).
Such opinion shall also state that they have participated in
conferences with officers and other representatives of RPM, and representatives
of the independent public accountants for RPM, at which conferences the
contents of the registration statement and the Prospectus and any further
amendments and supplements thereto made by RPM prior to the date of the opinion
and related matters were discussed, and have participated in the preparation of
the registration statement and Prospectus and any such further amendments or
supplements and, although such counsel is not passing upon, and does not assume
responsibility for, the accuracy, completeness or fairness of the statements
contained in the registration statement or the Prospectus, on the basis of the
foregoing, no facts have come to such counsel's attention that would lead such
counsel to believe (A) that, as of its effective date, the registration
statement or any further amendment thereto made by the Company prior to the
date of the opinion (other than the financial statements and related schedules
and other financial and statistical data contained therein, as to which such
counsel need make no statement) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
-9-
<PAGE> 10
therein or necessary to make the statements therein not misleading; (B) that,
as of its date, the Prospectus or any further amendment or supplement thereto
made by the Company prior to the date of the opinion (other than the financial
statements and related schedules and other financial and statistical data
contained therein, as to which such counsel need make no statement) contained
an untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading; and they do not know of any amendment to
the registration statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the registration
statement or required to be described in the registration statement or the
Prospectus which are not filed or described as required; and (2) a letter dated
such date, from the independent certified public accountants of RPM, addressed
to the underwriters stating in substance that they are independent certified
public accountants within the meaning of the Act and that, in the opinion of
such accountants, the financial statements and other financial data of RPM
included in the registration statement or the Prospectus, or any amendment or
supplement thereto, comply as to form in all material respects with the
applicable accounting requirements of the Act, and covering such other
financial matters (including information as to the period ending not more than
five business days prior to the date of such letter) with respect to the
registration in respect of which such letter is being given as is
-10-
<PAGE> 11
customarily provided by such accountants to underwriters in firm commitment
underwritings.
2.2 STOCKHOLDERS' OBLIGATION TO FURNISH INFORMATION. It
shall be a condition precedent to the obligations of RPM to take any action
pursuant to Section 2 hereof that the Stockholders shall furnish to RPM such
information regarding them, the Registrable RPM Shares held by them, and the
intended method of disposition of such securities as RPM shall reasonably
request and as shall be required in connection with the action to be taken by
RPM; provided, however, that RPM shall not be required to pay for any expenses
of any registration proceeding begun pursuant to Section 2.1 if the
registration request is subsequently withdrawn at the request of the selling
Stockholders.
2.3 EXPENSES OF REGISTRATION. All expenses incurred in
connection with a registration pursuant to Section 2.1 (excluding underwriters'
discounts and commissions and brokerage or dealer commissions or fees and
expenses of legal or other counsel to underwriters or Stockholders), including
without limitation all registration, qualification and filing fees (including
all expenses incident to filing with the National Association of Securities
Dealers, Inc., printers' and accounting fees, and fees and disbursements of
counsel for RPM, shall be borne by RPM; provided, however, that RPM shall not
be required to pay for any expenses of any registration proceeding begun
pursuant to Section 2.1 if the registration request is subsequently withdrawn
at the request of the selling Stockholders.
-11-
<PAGE> 12
2.4 DELAY OF REGISTRATION. No Stockholder shall have any
right to take any action to restrain, enjoin or otherwise delay any
registration statement under this Section 2 as the result of any controversy
that might arise with respect to the interpretation or implementation of this
Section 2.
2.5 INDEMNIFICATION. In the event any Registrable RPM
Shares are included in a registration statement under this Section 2:
2.5.1 INDEMNIFICATION OF STOCKHOLDERS. To the extent
permitted by law, RPM will indemnify and hold harmless each Stockholder
requesting or joining in any registration statement under this Section 2, and
each person, if any, who controls such Stockholder within the meaning of the
Act or the Securities Exchange Act of 1934 (the "Exchange Act"), against any
losses, claims, damages, expenses (including reasonable costs of investigation)
or liabilities, joint or several, to which they may become subject under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based on any untrue or alleged
untrue statement of any material fact contained in such registration statement,
including any Prospectus contained therein or any amendments or supplements
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or arise out of any violation by
RPM of any rule or regulation promulgated under the Act applicable to RPM and
relating to action or inaction required by RPM in connection with any such
-12-
<PAGE> 13
registration; and will reimburse each such Stockholder or controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section 2.5.1
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of RPM
(which consent shall not be unreasonably withheld) nor shall RPM be liable in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in connection with such
registration statement, any Prospectus, or amendments or supplements thereto,
in reliance upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Stockholder or
controlling person. It is expressly understood among the parties to this
Securities Agreement that in no event shall RPM be obligated to agree to
indemnify or indemnify, in any respect, any underwriter, broker, dealer or
other entity or person effecting the sale, purchasing or otherwise distributing
any of the Registrable RPM Shares, except as set forth in Section 2.1.1 hereof.
2.5.2 INDEMNIFICATION OF RPM. To the extent
permitted by law, each Stockholder requesting or joining in any registration
statement under this Section 2 will indemnify and hold harmless RPM, each of
its directors, each of its officers who have signed the registration statement,
each person, if any, who
-13-
<PAGE> 14
controls RPM within the meaning of the Act or the Exchange Act, and each agent
for RPM (within the meaning of the Act) against any losses, claims, damages,
expenses (including reasonable costs of investigation) or liabilities to which
RPM or any such director, officer, controlling person or agent may become
subject, under the Act or otherwise, insofar as such losses, claims, damages,
expenses (including reasonable costs of investigation) or liabilities (or
actions in respect thereto) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in such registration
statement, including any Prospectus contained therein or any amendments or
supplements thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such registration
statement, any Prospectus, or amendments or supplements thereof, in reliance
upon and in conformity with written information furnished by such Stockholder
expressly for use in connection with such registration; and each such
Stockholder will reimburse any legal or other expenses reasonably incurred by
RPM or any such director, officer, controlling person or agent in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
Section 2.5.2 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is
-14-
<PAGE> 15
effected without the consent of such Stockholder (which consent shall not be
unreasonably withheld).
2.5.3 NOTIFICATION OF AND PARTICIPATION IN CLAIMS.
Promptly after receipt by an indemnified party under
this Section 2 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 2, notify the indemnifying party in
writing of the commencement thereof and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties. The failure
to notify an indemnifying party promptly of the commencement of any such
action, if prejudicial to his, her or its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 2, but the omission so to notify the indemnifying party will not
relieve him, her or it of any liability that he, she or it may have to any
indemnified party otherwise than under this Section.
2.6 REPORTS UNDER EXCHANGE ACT. With a view to making
available to the Stockholders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Stockholder to sell securities of RPM to the public without registration, RPM
agrees to use its best efforts to (i) make and keep public information
available, as those terms are understood and defined in Rule 144, (ii) file
with the SEC in a timely manner all reports and other documents required of the
-15-
<PAGE> 16
Company under the Act and the Exchange Act, and (iii) furnish to any
Stockholder so long as such Stockholder owns any of the Registrable RPM Shares
forthwith upon request a written statement by RPM that it has complied with the
reporting requirements of Rule 144 and of the Act and the Exchange Act, a copy
of the most recent annual or quarterly report of RPM, and such other reports
and documents so filed by RPM as may be reasonably requested in availing any
Stockholder of any rule or regulation of the SEC permitting the selling of any
such securities without registration.
2.7 TRANSFER OF REGISTRATION RIGHTS. The registration
rights of the Stockholders under this Section 2 may not be transferred to any
third party, however, they will inure to the benefit of the Stockholders'
respective heirs and personal representatives.
3. CONTINUITY OF INTEREST; CONTINUITY OF BUSINESS ENTERPRISE.
After having discussed with each other their intentions
regarding registration and sale of the Registrable RPM Shares, the Stockholders
jointly and severally represent and warrant to RPM that there is no present
intention among them to sell such number of the Registrable RPM Shares received
by them in the Reorganization as would result in their retaining, in the
aggregate, such number of Registrable RPM Shares as would have a value as of
the time of the Reorganization of less than 50% of the value of all of the
issued and outstanding shares of Stonhard immediately prior to the
Reorganization. RPM represents and warrants to the Stockholders that it has no
present plan or intention to discontinue the business of Stonhard or to cause
-16-
<PAGE> 17
Stonhard to sell or distribute such of its assets or properties as would result
in a failure of Stonhard to hold substantially all of its assets or properties
immediately following the Reorganization.
4. POOLING-OF-INTERESTS ACCOUNTING.
Each Stockholder acknowledges and agrees that the
Reorganization shall be treated as a pooling-of-interests for accounting
purposes and that such Stockholder will not, in addition to any other
restriction on transfer of RPM Shares otherwise contained herein, sell or
otherwise transfer any of the RPM Shares received by such Stockholder pursuant
to the Reorganization until such time as financial results covering at least
thirty (30) days of the combined operations of Stonhard and RPM shall have been
published by RPM in a Form 10-Q filed with the SEC, which RPM shall cause not
later than January 15, 1994.
5. NOTICE OF SALE OF RPM SHARES.
For a period of three (3) years from the date hereof, in the
event a bona fide offer to purchase is made to or solicited by or on behalf of
a Stockholder relative to the private sale in one or a series of related
transaction(s) of all or substantially all of his, her or its Registrable RPM
Shares (hereinafter "Offer to Purchase"), such Stockholder shall notify RPM in
writing of the price per share and other terms of the Offer to Purchase and the
identity of the prospective purchaser or group of purchasers within five (5)
days of such Stockholder's receipt of the Offer to Purchase.
-17-
<PAGE> 18
6. MISCELLANEOUS.
6.1 NOTICES AND COMMUNICATIONS. Unless otherwise
provided herein, any notice or other communication under this Agreement shall
be deemed to have been duly given or made on the earlier of (i) the date of
receipt or (ii) the date when the same shall have been posted by certified or
registered mail, return receipt requested, in any post office in the United
States of America, postage prepaid and addressed to the party to whom such
notice or other communication is to be given or made at such party's address
set forth below, or to such other address as such party shall designate by
written notice to the other parties, as follows:
If intended for RPM:
RPM, Inc.
P. O. Box 777
2628 Pearl Road
Medina, Ohio 44258
Attention: Thomas C. Sullivan
with a copy to:
Calfee, Halter & Griswold
800 Superior Ave.
Suite 1800
Cleveland, Ohio 44114
Attention: William A. Papenbrock, Esq.
-18-
<PAGE> 19
If intended for the Stockholders:
H. Donald Stork
612 Ocean Road
Vero Beach, FL 32963
- and -
Jeffrey M. Stork
23 Marter Avenue
Mt. Laurel, NJ 08054
- and -
Brian D. Stork
612 Ocean Road
Vero Beach, FL 32963
- and -
Linda J. Stork
265 Sanford Street
New Brunswick, NJ 08901
- and -
Lauren L. Flannery
322-A Rawlins Run Road
Cheswick, PA 15024
with a copy to:
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
Attention: G. Daniel O'Donnell, Esq.
6.2 GOVERNING LAW. The validity, enforceability and
construction of this Agreement shall be governed by the laws of the State of
Ohio.
6.3 PRONOUNS. The use of the feminine, masculine or
neuter pronoun shall not be restrictive as to gender and shall be interpreted
in all cases as the context may require.
6.4 AMENDMENTS; SUCCESSORS. This Agreement may be
amended only by an agreement signed by all of the parties hereto
-19-
<PAGE> 20
and shall be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
6.5 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, which may be separately executed by the parties hereto,
each of which shall be an original and all of which taken together shall
constitute one and the same instrument. In making proof of this Agreement it
shall be necessary to produce or account for only one such counterpart signed
by or on behalf of the party sought to be charged herewith.
6.6 ENTIRE AGREEMENT. This Agreement, except insofar as
it refers to the Reorganization Agreement or any of the other agreements or
documents referred to therein, contains the entire agreement and understanding
of the parties with respect to the subject matter hereof. No prior agreement,
either written or oral, shall be construed to change, amend, alter, repeal or
invalidate this Agreement.
-20-
<PAGE> 21
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date and year first above mentioned.
RPM, INC.
/s/ H. Donald Stork By /s/ Thomas C. Sullivan
___________________________ __________________________
H. DONALD STORK Thomas C. Sullivan,
Chairman and Chief
Executive Officer
/s/ Jeffrey M. Stork
______________________________
JEFFREY M. STORK
/s/ Brian D. Stork
______________________________
BRIAN D. STORK
/s/ Linda J. Stork
______________________________
LINDA J. STORK
/s/ Lauren L. Flannery
______________________________
LAUREN L. FLANNERY
373/06821LAF.334
-21-
<PAGE> 1
Exhibit 4.9
MULTICURRENCY CREDIT AGREEMENT
Dated as of December 14, 1993
among
RPM, INC.,
RPOW (FRANCE) S.A.,
RPM EUROPE B.V.,
RADIANT COLOR N.V.,
CREDIT LYONNAIS CHICAGO BRANCH,
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
AND
CREDIT LYONNAIS BELGIUM
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S> <C>
ARTICLE I - DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . 1
1.01. Certain Defined Terms . . . . . . . . . . . . . . . 1
1.02. Accounting Terms . . . . . . . . . . . . . . . . . 13
1.03. Currency Equivalents Generally . . . . . . . . . . 13
ARTICLE II - AMOUNTS AND TERMS OF THE ADVANCES . . . . . . . . 13
2.01. The Advances . . . . . . . . . . . . . . . . . . . 13
2.02. Making the Advances . . . . . . . . . . . . . . . . 14
2.03. Conversion and Continuation Elections . . . . . . . 15
2.04. Fees . . . . . . . . . . . . . . . . . . . . . . . 16
2.05. Voluntary Reduction of the Commitment . . . . . . . 17
2.06. Repayment . . . . . . . . . . . . . . . . . . . . . 17
2.07. Interest . . . . . . . . . . . . . . . . . . . . . 17
2.08. Extension of Term . . . . . . . . . . . . . . . . . 18
2.09. Additional Interest on Eurocurrency
Advances . . . . . . . . . . . . . . . . . . . . . 18
2.10. Increased Costs, Etc. . . . . . . . . . . . . . . . 18
2.11. Prepayments; Funding Losses . . . . . . . . . . . . 19
2.12. Inability to Determine Rates . . . . . . . . . . . 20
2.13. Taxes . . . . . . . . . . . . . . . . . . . . . . . 21
2.14. Illegality . . . . . . . . . . . . . . . . . . . . 23
2.15. Sharing of Payments, Etc. . . . . . . . . . . . . . 23
2.16. Evidence of Indebtedness . . . . . . . . . . . . . 24
2.17. Currency Equivalents . . . . . . . . . . . . . . . 24
2.18 Currency Fluctuations . . . . . . . . . . . . . . . . 25
2.19 Survival . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE III - GUARANTY . . . . . . . . . . . . . . . . . . . . 25
3.01. Guaranty . . . . . . . . . . . . . . . . . . . . . 25
3.02. Guaranty Absolute . . . . . . . . . . . . . . . . . 25
3.03. Waiver . . . . . . . . . . . . . . . . . . . . . . 26
3.04. Subrogation . . . . . . . . . . . . . . . . . . . . 26
ARTICLE IV - CONDITIONS OF LENDING . . . . . . . . . . . . . . 27
4.01. Condition Precedent to Initial Advances . . . . . . 27
4.02. Conditions Precedent to Each Borrowing . . . . . . 27
ARTICLE V - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 28
5.01. Due Organization . . . . . . . . . . . . . . . . . 28
5.02. Due Authorization . . . . . . . . . . . . . . . . . 28
5.03. No Governmental Approval . . . . . . . . . . . . . 28
5.04. Enforceable Agreement . . . . . . . . . . . . . . . 29
5.05. Financial Information . . . . . . . . . . . . . . . 29
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
TABLE OF CONTENTS
(continued)
Page
----
<S> <C>
5.06. Litigation . . . . . . . . . . . . . . . . . . . . 29
5.07. Margin Stock . . . . . . . . . . . . . . . . . . . 29
5.08. No Default . . . . . . . . . . . . . . . . . . . . 29
5.09. ERISA Compliance . . . . . . . . . . . . . . . . . 29
5.10. Title to Properties. . . . . . . . . . . . . . . . 30
5.11. Taxes. . . . . . . . . . . . . . . . . . . . . . . 30
5.12. Environmental Matters. . . . . . . . . . . . . . . 30
5.13. Use of Proceeds. . . . . . . . . . . . . . . . . . 31
5.14. Regulated Entities . . . . . . . . . . . . . . . . 31
5.15. Subsidiaries; No Restrictions on Dividends . . . . 31
5.16. Insurance. . . . . . . . . . . . . . . . . . . . . 31
5.17. Copyrights, Patents, Trademarks and
Licenses, Etc. . . . . . . . . . . . . . . . . . 31
ARTICLE VI - AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . 32
6.01. Financial Statements . . . . . . . . . . . . . . . 32
6.02. Certificates; Other Information. . . . . . . . . . 32
6.03. Notices. . . . . . . . . . . . . . . . . . . . . . 33
6.04. Preservation of Corporate Existence Rights,
Etc. . . . . . . . . . . . . . . . . . . . . . . 35
6.05. Insurance. . . . . . . . . . . . . . . . . . . . . 35
6.06. Payment of Obligations . . . . . . . . . . . . . . 35
6.07. Compliance with Laws . . . . . . . . . . . . . . . 35
6.08. Inspection of Property and Books and
Records. . . . . . . . . . . . . . . . . . . . . 35
6.09. Environmental Laws . . . . . . . . . . . . . . . . 36
6.10. Use of Proceeds. . . . . . . . . . . . . . . . . . 36
6.11. Further Assurances . . . . . . . . . . . . . . . . 36
ARTICLE VII - NEGATIVE COVENANTS . . . . . . . . . . . . . . . 36
7.01. Liens, Etc . . . . . . . . . . . . . . . . . . . . 36
7.02. Mergers, Consolidations and Dispositions of
Assets . . . . . . . . . . . . . . . . . . . . . 38
7.03. Use of Proceeds. . . . . . . . . . . . . . . . . . 39
7.04. Compliance with ERISA. . . . . . . . . . . . . . . 39
7.05. Accounting Changes . . . . . . . . . . . . . . . . 40
7.06. Contracts of Subsidiaries. . . . . . . . . . . . . 40
7.07. Minimum Tangible Net Worth . . . . . . . . . . . . 40
7.08. Leverage Ratio . . . . . . . . . . . . . . . . . . 40
7.09. Ratio of Long-Term Debt to Capitalization . . . . . 40
7.10. Ratio of EBIT to Interest Expense. . . . . . . . . 40
ARTICLE VIII - EVENTS OF DEFAULT. . . . . . . . . . . . . . . 40
8.01. Events of Default. . . . . . . . . . . . . . . . . 40
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
TABLE OF CONTENTS
(continued)
Page
----
<S> <C>
8.02. Remedies . . . . . . . . . . . . . . . . . . . . 43
ARTICLE IX - THE AGENT . . . . . . . . . . . . . . . . . . . 44
9.01. Authorization and Action. . . . . . . . . . . . . 44
9.02. Agent's Reliance, Etc . . . . . . . . . . . . . . 44
9.03. CLCB and Affiliates . . . . . . . . . . . . . . . 45
9.04. Indemnification . . . . . . . . . . . . . . . . . 45
ARTICLE X - MISCELLANEOUS . . . . . . . . . . . . . . . . . . 46
10.01. Amendments, Etc. . . . . . . . . . . . . . . . . 46
10.02. Notices, Etc . . . . . . . . . . . . . . . . . . 46
10.03. No Waiver; Remedies. . . . . . . . . . . . . . . 47
10.04. Expenses . . . . . . . . . . . . . . . . . . . . 47
10.05. Right of Set-off . . . . . . . . . . . . . . . . 47
10.06. Judgment Currency Conversions . . . . . . . . . 48
10.07. Binding Effect . . . . . . . . . . . . . . . . . 48
10.08. Participations . . . . . . . . . . . . . . . . . 48
10.09. Execution in Counterparts . . . . . . . . . . . 49
10.10. Severability . . . . . . . . . . . . . . . . . . 49
10.11. GOVERNING LAW AND JURISDICTION . . . . . . . . . 49
10.12. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . 50
</TABLE>
<TABLE>
<S> <C>
SCHEDULES
Schedule 2.01 Lender Advance Percentages
Schedule 5.06 Litigation Matters
Schedule 5.12 Environmental Matters
Schedule 5.15 Subsidiaries
EXHIBITS
Exhibit A Form of Compliance Certificate
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Notice of Conversion/Continuation
Exhibit D Form of Opinion of Counsel to RPM
</TABLE>
-iii-
<PAGE> 5
MULTICURRENCY CREDIT AGREEMENT
This Multicurrency Credit Agreement (the "Agreement") is
entered into as of December 14, 1993 among RPM, Inc., a
corporation organized under the laws of the State of Ohio
("RPM"), RPOW (France) S.A., a corporation organized under the
laws of France, RPM Europe B.V., a corporation organized under
the laws of the Netherlands, and Radiant Color N.V., a
corporation organized under the laws of Belgium, (RPOW (France)
S.A., RPM Europe B.V. and Radiant Color N.V. are hereinafter
referred to as the "Subsidiary Borrowers," and RPM and the
Subsidiary Borrowers are each referred to hereinafter
individually as a "Borrower" and, collectively, as the
"Borrowers"), the lenders (the "Lenders") listed on the signature
pages hereof, and Credit Lyonnais Chicago Branch ("CLCB") as
agent (the "Agent") for the lenders hereunder.
PRELIMINARY STATEMENT
RPM has requested that the Lenders make loans available to
it and certain of its Subsidiaries pursuant to the terms of this
Agreement, which include, among other terms, a guaranty by RPM of
any loans made to such Subsidiaries. The Agent and Lenders have
agreed to do so.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. CERTAIN DEFINED TERMS. As used in this Agreement,
the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"ADVANCE" means a Base Rate Advance or a Eurocurrency
Advance.
"AFFILIATE" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. A Person shall be deemed
to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the
direction of the management and policies of the other Person,
whether through the ownership of voting securities, by contract
or otherwise. Without limitation, any director, executive
officer or beneficial owner of 15% or more of the voting equity
of a Person shall for the purposes of this Agreement, be deemed
to control the other Person.
"ALLOCATION PERCENTAGE" means, with respect to CLCB,
66-2/3%, and, with respect to Credit Lyonnais Belgium, 33-1/3%.
<PAGE> 6
"ALTERNATIVE CURRENCY" means Belgian francs, Dutch guilders,
French francs or British sterling as the case may be.
"APPLICABLE MARGIN" means for the Interest Period for each
Eurocurrency Advance comprising part of the same Borrowing, the
margin set forth below opposite the then current RPM Subordinated
Debt Rating:
<TABLE>
<CAPTION>
RPM Subordinated Applicable
Debt Rating Margin
---------------- ----------
<S> <C>
The S&P rating is better than BBB+ 0.40%
and the Moody's rating is better
than Baa1
The above does not apply, but 0.50%
the S&P rating is better than BB+
and the Moody's rating is better
than Ba1
The above do not apply, but the 0.75%
S&P rating is better than BB and
the Moody's rating is better than
Ba
All other cases 1.00%
</TABLE>
For purposes of this definition, "RPM Subordinated Debt
Rating" means the ratings assigned by Moody's and S&P that are in
effect two Business Days before the first day of such Interest
Period. If a rating is only available from either Moody's or S&P
but not both, the available rating shall be used to determine the
Applicable Margin and the requirement relating to the unavailable
rating shall be waived.
If no rating is in effect from either Moody's or S&P, the
Applicable Margin, for the Interest Period for each Eurocurrency
Advance comprising part of the same Borrowing shall be the margin
set forth below opposite RPM's ratio of EBIT to Consolidated
Interest Expense as calculated using RPM's most recent
-2-
<PAGE> 7
consolidated financial statements delivered to the Agent pursuant
to Section 6.01 hereof:.
<TABLE>
<CAPTION>
EBIT/Consolidated
Interest Expense Applicable
for RPM Margin
----------------- ----------
<S> <C>
Greater than or
equal to 6.50:1 0.45%
5.00 - 6.49:1 0.50%
3.50 - 4.99:1 0.55%
3.00 - 3.49:1 0.65%
Less than or
equal to 2.99:1 0.75%
</TABLE>
"BASE RATE" means, on a daily basis, for a borrowing
consisting of:
(a) Dollars -- the higher of (i) the rate per annum
established by the Agent from time to time as the reference
rate for short-term commercial loans in Dollars to U.S.
domestic corporate borrowers (which the Borrowers
acknowledge is not necessarily the Agent's lowest rate) and
(ii) the overnight cost of funds to the Agent as determined
solely by the Agent plus one percent (1%) per annum;
(b) Belgian francs -- the rate per annum quoted as the
overdraft rate by the principal office of Credit Lyonnais in
Brussels, Belgium for domestic corporate borrowers;
(c) Dutch guilders -- the rate per annum quoted as the
overdraft rate by the principal office of Credit Lyonnais in
Rotterdam, Netherlands for domestic corporate borrowers;
(d) French francs -- the rate per annum quoted as the
overdraft rate by the principal office of Credit Lyonnais in
Paris, France for domestic corporate borrowers; and
(e) British sterling -- the rate per annum quoted as
the overdraft rate by the principal office of Credit
Lyonnais in London, England for domestic corporate
borrowers;
"BASE RATE ADVANCE" means an Advance which bears interest at
a rate per annum determined on the basis of a Base Rate.
"BORROWING" means a borrowing hereunder consisting of
Advances made to the same Borrower on the same day by the
Lenders.
-3-
<PAGE> 8
"BUSINESS DAY" means a day of the year on which banks are
not required or authorized to close in Chicago, Illinois and
(i) with respect to any Advance to a Subsidiary Borrower, is also
a day of the year on which banks are not required or authorized
to close in Brussels, Belgium and (ii) with respect to
Eurocurrency Advances in Dollars, Dutch guilders or French francs
is also a day on which dealings are carried on in the London
interbank market, and (iii) with respect to Eurocurrency Advances
in Belgian francs, Dutch guilders or French francs, is also a day
on which banks are open for business in the country of issue of
the currency of such Eurocurrency Advance.
"CLB" means Credit Lyonnais Belgium.
"CLOSING DATE" means the date of execution of this
Agreement.
"CODE" means the U.S. Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"COMMITMENT" has the meaning specified in Section 2.01.
"COMPLIANCE CERTIFICATE" means a certificate delivered to
the Agent by RPM pursuant to Section 6.02(a), substantially in
the form of Exhibit A.
"CONSOLIDATED CAPITALIZATION" means, as of the date of any
determination thereof with respect to any Person, the aggregate
of the shareholders' equity of such Person and its Subsidiaries
appearing on the balance sheet of such Person plus such Person's
Consolidated Long Term Debt, all prepared in accordance with
GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period with
respect to any Person, all amounts (including all commissions,
discounts, fees and other charges in connection with any
Indebtedness) which would, in accordance with GAAP, be included
in interest expense on the consolidated income statement of such
Person and its Subsidiaries for such period.
"CONSOLIDATED LONG TERM DEBT" means, as of the date of
determination thereof with respect to any Person, the aggregate
amount of all Indebtedness which would, in accordance with GAAP,
constitute long term Indebtedness (including, without limitation:.
(a) any Indebtedness with a maturity of more than one year after
the creation of such Indebtedness, and (b) any lease obligations
which would be considered capital lease obligations under GAAP)
on the balance sheet of such Person and its Subsidiaries prepared
in accordance with GAAP on a consolidated basis.
"CONSOLIDATED NET INCOME (LOSS)" means, for any period, with
respect to any Person, all amounts which would, in accordance
-4-
<PAGE> 9
with GAAP, be included in net income (loss) on the consolidated
income statement of such Person and its Subsidiaries for such
period.
"CONSOLIDATED TANGIBLE NET WORTH" means, as of the date of
the determination thereof, with respect to any Person, the
aggregate amount of shareholders' equity of such Person and its
Subsidiaries appearing on the balance sheet of such Person and
its Subsidiaries prepared in accordance with GAAP on a
consolidated basis, less the sum of (without duplication) (a) the
cost of any treasury shares included on such balance sheet and
(b) the aggregate of all amounts that appear on the asset side of
such balance sheet and are attributable to assets which would be
treated as intangibles under GAAP, including, without limitation,
all such items as goodwill, trademarks, trade names, brand names,
copyrights, patents, patent applications, licenses, franchises,
permits and rights with respect to the foregoing, and unamortized
debt discount and expenses, plus, with respect to RPM, the
outstanding principal balance of the RPM Subordinated Debt.
"CONSOLIDATED TOTAL ASSETS" means, with respect to any
Person, as of the date of any determination thereof, the
aggregate of all assets appearing on the balance sheet of such
Person and its Subsidiaries prepared in accordance with GAAP on a
consolidated basis.
"CONSOLIDATED TOTAL LIABILITIES" means, with respect to any
Person, as of the date of any determination thereof, the
aggregate of all liabilities appearing on the balance sheet of
such Person and its Subsidiaries prepared in accordance with GAAP
on a consolidated basis.
"CONTRACTUAL OBLIGATIONS" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed of
trust or other instrument, document or agreement to which such
Person is a party or by which it or any of its property is bound.
"CONTROLLED GROUP" means RPM and all Persons (whether or not
incorporated) under common control or treated as a single
employer with RPM pursuant to Section 414(b), (c), (m) or (o) of
the Code.
"CONVERSION DATE" means any date on which a Borrower elects
to convert (a) a Base Rate Advance to a Eurocurrency Advance or
to a Base Rate Advance in another Alternative Currency or Dollars
or (b) a Eurocurrency Advance to a Base Rate Advance or to a
Eurocurrency Advance in another Alternative Currency or Dollars.
"DEFAULT" means an event which with notice or lapse of time
or both would become an Event of Default.
-5-
<PAGE> 10
"DOLLARS" and the sign "$" each means lawful money of the
United States of America.
"EBIT" means, for any period, with respect to any Person,
the sum of (a) Consolidated Net Income (Loss), plus (b)
Consolidated Interest Expense, plus (c) provision for income
taxes to the extent included in the determination of Consolidated
Net Income (Loss), all determined on a consolidated basis in
accordance with GAAP for such Person and its Subsidiaries;
provided, however, that Consolidated Net Income (Loss) shall be
computed for these purposes without giving effect to losses or
gains from discontinued operations or extraordinary losses or
gains.
"ENVIRONMENTAL CLAIMS" means all claims, however asserted,
by any Governmental Authority or other Person alleging potential
liability or responsibility for violation of any Environmental
Law or for release or injury to the environment or threat to
public health, personal injury (including sickness, disease or
death), property damage, natural resources damage, or otherwise
alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or
other type of relief, resulting from or based upon (a) the
alleged or actual presence, placement, migration, spillage,
leakage, disposal, discharge, emission or release of any
Hazardous Material at, in, or from property, whether or not owned
by a Borrower, or (b) any other circumstances forming the basis
of any violation, or alleged violation, of any Environmental Law.
"ENVIRONMENTAL LAWS" means all federal, national, state or
local laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative orders,
directed duties, requests, licenses, authorizations, registration
requirements and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental
and land use matters or health and safety matters involving
Hazardous Materials.
"ERISA" means the U.S. Employee Retirement Income Security
Act of 1974, as amended from time to time, and regulations
promulgated and rulings issued thereunder.
"ERISA AFFILIATE" means any trade or business (whether or
not incorporated) under common control with a Borrower within the
meaning of Section 414(b), 414(c) or 414(m) of the Code.
"ERISA EVENT" means (a) with respect to any Qualified Plan
or Multiemployer Plan, an event set forth in Section 4043 of
ERISA or the regulations thereunder other than any such event for
which the 30-day notice requirement under ERISA has been waived
in regulations issued by the PBGC; (b) a withdrawal by a Borrower
-6-
<PAGE> 11
or any ERISA Affiliate from a Qualified Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA); (c) a
complete or partial withdrawal by a Borrower or any ERISA
Affiliate from a Multiemployer Plan or cessation of operations at
a facility by a Borrower or an ERISA Affiliate described in
Section 4062(e) of ERISA; (d) the filing of a notice of intent to
terminate, the treatment of a plan amendment as a termination
under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Qualified Plan or
Multiemployer Plan subject to Title IV of ERISA; (e) a failure by
a Borrower or any member of the Controlled Group to make required
contributions to a Qualified Plan or Multiemployer Plan; (f) an
event or condition which constitutes grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee
to administer, any Qualified Plan or Multiemployer Plan; (g) the
imposition of any liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of ERISA,
upon a Borrower or any ERISA Affiliate; (h) an application for a
funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code with respect to any Plan;
(i) a non-exempt prohibited transaction occurs with respect to
any Plan for which a Borrower or any Subsidiary of a Borrower
could reasonably be expected to be directly or indirectly liable;
or (j) a violation of the applicable requirements of Section 404
or 405 of ERISA or the exclusive benefit rule under Section
401(a) of the Code by any fiduciary or disqualified person with
respect to any Plan for which a Borrower or any member of the
Controlled Group could reasonably be expected to be directly or
indirectly liable.
"EUROCURRENCY ADVANCE" means an Advance which bears interest
at a rate per annum determined on the basis of a Eurocurrency
Rate.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that
term in Regulation D of the Board of Governors of the U.S.
Federal Reserve System, as in effect from time to time.
"EUROCURRENCY RATE" means, for the Interest Period for each
Eurocurrency Advance comprising part of the same Borrowing, the
interest rate per annum determined by the Agent to be the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the average
offered rates for deposits in Dollars or in the relevant
Alternative Currency which appear on Telerate page 3750 (or, as
the case may be, Telerate page 3740 or Telerate page 20339, or
any Telerate page from which quotations for the relevant rates
are available) as at or about 11:00 a.m., London time, two
Business Days before the first day of such Interest Period or, if
no such offerred rates appear on the relevant Telerate page, the
average rate of interest per annum (a) at which deposits in
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<PAGE> 12
Dollars or in the relevant Alternative Currency, other than
Belgian francs are offered by the principal office of Credit
Lyonnais in London England to prime banks in the London
interbank market at 11.00 a.m. (London time) or (b) at which
Belgian francs are offered by the principal office of Credit
Lyonnais Belgium to prime banks in the Brussels interbank market
at 11:00 a.m. (Brussels time) two Business Days before the first
day of such Interest Period in an amount substantially equal to
such Borrowing and for a period equal to such Interest Period.
The Eurocurrency Rate for the Interest Period for each
Eurocurrency Advance comprising part of the same Borrowing shall
be determined by the Agent on the basis of applicable rates
obtained by the Agent two Business Days before the first day of
such Interest Period.
"EUROCURRENCY RESERVE PERCENTAGE" of any Lender for any
Interest Period for a Eurocurrency Advance means the reserve
percentage applicable during such Interest Period (or if more
than one such percentage shall be so applicable, the daily
average of such percentages for those days in such Interest
Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Board of
Governors of the U.S. Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for such Lender with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"EVENT OF DEFAULT" has the meaning specified in Section
8.01.
"EXPIRATION DATE" means December 14, 1996 or, if this
Agreement is extended as contemplated in Section 2.08 hereof, the
last date of the term as so extended.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds
transactions with members of the U.S. Federal Reserve System
arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"GAAP" means generally accepted accounting principles in the
United States as set forth from time to time in the opinions and
pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements
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and pronouncements of the Financial Accounting Standards Board
(or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), consistently
applied.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, any central bank
(or similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"HAZARDOUS MATERIALS" means all those substances which are
regulated by, or which may form the basis of liability under, any
Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant, hazardous waste,
hazardous constituent, hazardous chemicals, special waste,
hazardous substance, hazardous material, regulated substance, or
toxic substance, or petroleum or petroleum derived substance or
waste.
"INDEBTEDNESS" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations issued,
undertaken or assumed as the deferred purchase price of property
or services (other than trade payables incurred in the ordinary
course of business pursuant to ordinary terms); (c) all
obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or
businesses; (d) all indebtedness created or arising under any
conditional sale or other title retention agreement, or incurred
as financing, in either case with respect to property acquired by
the Person (even though the rights and remedies of the seller or
bank under such agreement in the event of default are limited to
repossession or sale of such property); (e) all obligations which
under GAAP would be classified as capital leases; and
(f) liabilities in respect of unfunded vested benefits under
plans covered by Title IV of ERISA.
"INSOLVENCY PROCEEDING" means (a) any case, action or
proceeding before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or
(b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors or other,
similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; in each case (a) and (b)
undertaken under U.S. federal, state or foreign law, including
the U.S. Bankruptcy Code.
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"INTEREST PAYMENT DATE" means:
(a) with respect to any Eurocurrency Advance, the last
day of an Interest Period applicable to such Advance; and
(b) with respect to any Base Rate Advance,
(i) the last Business Day of each month for Base
Rate Advances outstanding during such month,
(ii) the Termination Date,
(iii) each date a Base Rate Advance is converted
into a Eurocurrency Advance; and
(iv) the date of any prepayment of a Base Rate
Advance pursuant to Section 2.11(a).
"INTEREST PERIOD" means, with respect to any Eurocurrency
Advance, the period commencing on the Business Day the Advance is
disbursed or continued or on the Conversion Date on which the
Advance is converted to a Eurocurrency Advance and ending on the
date one (1), two (2), three (3) or six (6) months thereafter, as
selected by a Borrower in its Notice of Borrowing or Notice of
Conversion/Continuation; provided that:
(a) if any Interest Period pertaining to a
Eurocurrency Advance would otherwise end on a day which is
not a Business Day, that Interest Period shall be extended
to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period
shall end on the immediately preceding Business Day;
(b) any Interest Period pertaining to a Eurocurrency
Advance that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the
Termination Date.
"LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its Lending Office beneath its
name on its signature page hereto or such other office of such
Lender as such Lender may from time to time specify to the
Borrowers, the Agent and the Lenders.
"LENDER ADVANCE PERCENTAGES" has the meaning specified in
Section 2.01.
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"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or other security interest
(including those created by, arising under or evidenced by any
conditional sale or other title retention agreement, the interest
of a lessor under a capital lease, any financing lease having
substantially the same economic effect as any of the foregoing,
or the filing of any financing statement naming the owner of the
asset to which such lien relates as debtor, under the UCC or any
comparable law) and any contingent or other agreement to provide
any of the foregoing.
"MARGIN STOCK" means "margin stock" as such term is defined
in Regulation G, T, U or X of the U.S. Federal Reserve Board.
"MATERIAL ADVERSE EFFECT" means a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of
RPM and its Subsidiaries on a consolidated basis.
"MOODY'S" means Moody's Investor Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" (within
the meaning of Section 4001(a)(3) of ERISA) and to which any
member of the Controlled Group makes, is making, or is obligated
to make contributions or, during the preceding three calendar
years, has made, or been obligated to make, contributions.
"NOTICE OF BORROWING" means a notice given by a Borrower to
the Agent pursuant to Section 2.02, in substantially the form of
Exhibit B.
"NOTICE OF CONVERSION/CONTINUATION" means a notice given by
the Borrower to the Agent pursuant to Section 2.03, in
substantially the form of Exhibit C.
"OBLIGATIONS" means all Advances, guaranty obligations, and
other Indebtedness, liabilities, obligations, covenants and
duties owing by the Borrowers to any Lender, the Agent, or any
other Person required to be indemnified hereunder, of any kind or
nature, present or future, whether or not evidenced by any note,
guaranty or other instrument, arising under this Agreement,
whether or not for the payment of money, whether arising by
reason of an extension of credit, a loan, guaranty,
indemnification or in any other manner, whether direct or
indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter
arising and however acquired.
"OTHER TAXES" has the meaning specified in Section 2.13(b).
"PBGC" means the U.S. Pension Benefit Guaranty Corporation.
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<PAGE> 16
"PAYMENT OFFICE" means, for Dollars, CLCB's office in
Chicago, Illinois, located on the date hereof at 227 West Monroe
Street, Chicago, Illinois 60606, and, for any Alternative
Currency, such office of Credit Lyonnais as shall be from time to
time selected by the Agent and notified by the Agent to the
Borrowers and the Lenders.
"PERSON" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"PLAN" means an employee benefit plan (as defined in Section
3(3) of ERISA) which RPM or any member of the Controlled Group
sponsors or maintains or to which RPM or any member of the
Controlled Group makes, is making or is obligated to make
contributions.
"PERMITTED LIENS" has the meaning specified in Section 7.01.
"QUALIFIED PLAN" means a pension plan (as defined in Section
3(2) of ERISA) intended to be tax-qualified under Section 401(a)
of the Code and which any member of the Controlled Group
sponsors, maintains, or to which it makes, is making or is
obligated to make contributions, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding period
covering at least five (5) plan years, but excluding any
Multiemployer Plan.
"RPM SUBORDINATED DEBT" means those certain twenty-year
Liquid Yield Option Notes issued by RPM in 1992 in the aggregate
principal amount of $400,000,000.
"S&P" means Standard & Poor's Corporation.
"SEC" means the Securities and Exchange Commission of the
United States of America.
"SUBSIDIARY" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more
than 50% of the voting stock or other equity interests (in the
case of Persons other than corporations), is owned or controlled
directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof.
"SUBSIDIARY OBLIGATIONS" means Obligations which are owed by
any Subsidiary Borrower.
"TAXES" has the meaning specified in Section 2.13(a).
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<PAGE> 17
"TERMINATION DATE" means the earlier of the Expiration Date
or the date of termination in whole of the Commitment pursuant to
Section 2.05 or 8.02.
"TYPE" means, with reference to an Advance, a Base Rate
Advance or a Eurocurrency Advance.
"UCC" means the Uniform Commercial Code as promulgated by
the American Law Institute and the National Conference of
Commissioners on Uniform State Laws in the United States.
"UNFUNDED PENSION LIABILITIES" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Plan's assets, determined as of the date of
the most recently completed actuarial valuation with respect to
the Plan in accordance with the assumptions used by the Plan's
actuaries for funding the Plan pursuant to section 412 for the
applicable plan year.
"UNITED STATES" and "U.S." each means United States of
America.
"WHOLLY-OWNED SUBSIDIARY" means any corporation in which
(other than directors' qualifying shares required by law) 100% of
the capital stock of each class having ordinary voting power, and
100% of the capital stock of every other class, in each case, at
the time as of which any determination is being made, is owned,
beneficially and of record, by a Borrower, or by one or more of
the other Wholly-Owned Subsidiaries, or both.
"WITHDRAWAL LIABILITIES" means, as of any determination
date, the aggregate amount of the liabilities, if any, pursuant
to Section 4201 of ERISA if the Controlled Group made a complete
withdrawal from all Multiemployer Plans and any increase in
contributions pursuant to Section 4243 of ERISA.
1.02. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with
GAAP as consistently applied in the preparation of the financial
statements referred to in Section 5.05.
1.03. CURRENCY EQUIVALENTS GENERALLY. For all purposes of
this Agreement other than Article II, the equivalent in any
Alternative Currency of an amount in Dollars shall be determined
at the rate of exchange quoted by Credit Lyonnais Belgium in
Brussels, Belgium, at 11:00 a.m. (Brussels time) on the date of
determination, to prime banks in Brussels for the spot purchase
in the Brussels foreign exchange market of such amount of Dollars
with such Alternative Currency.
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<PAGE> 18
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. THE ADVANCES. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Advances in
accordance with the "Lender Advance Percentages" set forth in
Schedule 2.01 hereto to the Borrowers from time to time on any
Business Day during the period from the date hereof until
(a) with respect to Eurocurrency Advances, the date falling one
month prior to December 14, 1996 and (b) with respect to Base
Rate Advances, December 12, 1996. The aggregate amount of all
the Lenders' Advances shall not exceed (whether in Dollars or in
one or more Alternative Currencies) at any time outstanding the
equivalent of $30,000,000 (as such amount may be reduced from
time to time pursuant to Section 2.05) (the "Commitment"). Each
Borrowing shall be in an aggregate amount not less than
$1,000,000 (or the equivalent thereof in any Alternative
Currency) or an integral multiple of $1,000,000 (or the
equivalent thereof in any Alternative Currency) in excess thereof
and shall consist of Advances made to the same Borrower on the
same day by the Lenders ratably according to the Lender Advance
Percentages. Within the limits of the Commitment, each Borrower
may borrow, repay and reborrow under this Section 2.01. For
purposes of this Section 2.01 and all other provisions of this
Article II, the equivalent in Dollars of any Alternative Currency
or the equivalent in any Alternative Currency of Dollars or of
any other Alternative Currency shall be determined in accordance
with Section 2.17.
2.02. MAKING THE ADVANCES.
(a) Each Borrowing shall be made on a Borrower's
irrevocable written notice (or telephonic notice, promptly
confirmed by a writing) delivered to the Agent in the form
of a Notice of Borrowing (which notice must be received by
the Agent not later than 10:00 a.m. (Chicago time)):
(i) three Business Days prior to the requested
date of a proposed Borrowing consisting of Eurocurrency
Advances, and
(ii) two Business Days prior to the requested date
of a proposed Borrowing consisting of Base Rate
Advances.
The Notice of Borrowing shall specify (i) the requested date
of such Borrowing, which shall be a Business Day, (ii) the
name of the Borrower, (iii) the aggregate amount of such
Borrowing, (iv) whether the Borrowing is to be comprised of
Eurocurrency Advances or Base Rate Advances; (v) the
currency of such Borrowing and (vi) the Interest Period for
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each Eurocurrency Advance to be made as part of such
Borrowing.
(b) The Agent shall promptly notify each Lender upon
receipt of a Notice of Borrowing and of such Lender's pro
rata share (pursuant to the Lender Advance Percentages)
thereof. If the Borrowing is in an Alternative Currency,
the Agent shall also state the aggregate equivalent amount
of such Borrowing in Dollars and such Lender's ratable
portion of such Borrowing.
(c) Each Lender shall, before 10:00 a.m. (Chicago
time) on the date of such Borrowing, make available to the
Agent at the Agent's applicable Payment Office its pro rata
share (pursuant to the Lender Advance Percentages) of the
Borrowing in the requested currency. The Agent will make
such funds available to the Borrower at the applicable
Payment Office.
(d) After giving effect to any Borrowing, conversion
or continuation, there shall not be more than five
different Interest Periods in effect, and there shall not be
more than five Borrowing(s) per month.
2.03. CONVERSION AND CONTINUATION ELECTIONS.
(a) Prior to thirty days before the Termination Date,
a Borrower may upon irrevocable written notice (or
telephonic notice, promptly confirmed by a writing) to the
Agent in accordance with Section 2.03(b):
(i) elect to convert on any Business Day, any
Base Rate Advances (or any part thereof in an amount
not less than $1,000,000 (or the equivalent in an
Alternative Currency of $1,000,000) or an integral
multiple thereof) made to it to Eurocurrency Advances
or to Base Rate Advances in another Alternative
Currency of Dollars; or
(ii) elect to convert on any Interest Payment Date
any Eurocurrency Advances maturing on such Interest
Payment Date (or any part thereof in an amount not less
than $1,000,000 (or the equivalent in an Alternative
Currency of $1,000,000) or an integral multiple
thereof) to Base Rate Advances or to Eurocurrency
Advances in another Alternative Currency or Dollars; or
(iii) elect to continue on any Interest Payment
Date any Eurocurrency Advances maturing on such
Interest Payment Date (or any part thereof in an amount
not less than $1,000,000 (or the equivalent in an
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Alternative Currency of $1,000,000)) or an integral
multiple thereof).
(b) Each Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Agent not
later than 10:00 a.m. (Chicago time) at least (i) three
Business Days in advance of the Conversion Date or
continuation date, if the Advances are to be converted into
or continued as Eurocurrency Advances and (ii) two Business
Days in advance of the Conversion Date, if the Advances are
to be converted into Base Rate Advances, specifying:.
(A) the proposed Conversion Date or continuation
date;
(B) the aggregate amount of Advances to be
converted or renewed;
(C) the nature of the proposed conversion or
continuation; and
(D) the duration of the requested Interest
Period.
(c) If, upon the expiration of any Interest Period, a
Borrower has failed to select a new Interest Period to be
applicable to its Eurocurrency Advances or if any Default or
Event of Default then exists, such Borrower shall be deemed
to have elected to convert such Eurocurrency Advances into
Base Rate Advances (in the same currency) effective as of
the expiration date of such Interest Period.
(d) Upon receipt of a Notice of Conversion/
Continuation, the Agent will promptly notify each Lender
thereof, or, if no timely notice is provided by a Borrower,
the Agent will promptly notify each Lender of the details of
any automatic conversion. All conversions and continuations
shall be made pro rata according to the outstanding
principal amounts of the Advances of each Lender with
respect to which the notice was given.
(e) During the existence of a Default or Event of
Default, no Borrower may elect to have an Advance made,
converted into or continued as a Eurocurrency Advance.
2.04. FEES.
(a) COMMITMENT FEE. RPM agrees to pay to the Agent
for the account of each Lender in accordance with its
Allocation Percentage a commitment fee on the average daily
unused portion of the Commitment from the date hereof until
the Termination Date, payable on the last day of each March,
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June, September and December commencing December 31, 1993,
and on the Termination Date, at the rate of one-quarter of
one percent (1/4%) per annum.
(b) FACILITY FEE. RPM agrees to pay to the Agent on
the Closing Date for the account of each Lender in
accordance with its Allocation Percentage a facility fee
equal to one-tenth of one percent (1/10%) of $30,000,000.
2.05. VOLUNTARY REDUCTION OF THE COMMITMENT. RPM shall
have the right, upon at least three (3) Business Days' notice to
the Agent, to terminate in whole or reduce in part the unused
portion of the Commitment; PROVIDED, HOWEVER, that each partial
reduction shall be in the aggregate amount of $1,000,000 (or the
equivalent in any Alternative Currency) or an integral multiple
of $1,000,000 (or the equivalent in any Alternative Currency) in
excess thereof.
2.06. REPAYMENT. The Borrowers shall repay the principal
amount of all Advances on the Termination Date.
2.07. INTEREST.
(a) Each Borrower shall pay to the Agent for the
account of each Lender interest on the unpaid principal
amount of each Advance made to it by such Lender from the
date of such Advance until such Advance is paid in full, at
a rate per annum equal to:
(i) with respect to a Eurocurrency Advance, the
sum of (x) the Eurocurrency Rate for such Interest
Period plus (y) the Applicable Margin and
(ii) with respect to a Base Rate Advance, the Base
Rate.
(b) Interest on each Advance shall be paid in arrears
on each Interest Payment Date relating to such Advance.
During the existence of an Event of Default, interest shall
be paid on demand.
(c) During the continuance of an Event of Default and
after acceleration, the Borrowers shall pay interest on the
principal amount of all Obligations due and payable at a
rate per annum equal to 2% above the rate per annum required
to be paid.on such Advance immediately prior to the date on
which such amount became due.
(d) The Agent shall give prompt notice to the
Borrowers and the Lenders of the applicable interest rate;
PROVIDED that any failure to do so shall not relieve the
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<PAGE> 22
Borrowers of any liability hereunder or provide the basis
for any claim against the Agent.
(e) All computations of fees and interest under this
Agreement shall be made on the basis of a 360-day year and actual
days elapsed. Each determination of an interest rate by the
Agent pursuant hereto shall be conclusive and binding on the
Borrowers and the Lenders in the absence of manifest error.
2.08. EXTENSION OF TERM. Once a year, beginning in 1994,
the Lenders, upon the request of RPM, will determine, in their
sole and absolute discretion, whether to extend the current
Expiration Date of this Agreement by one year; provided that RPM
makes its extension request to the Agent in writing at least 60
days, but not more than 90 days before December 14th of that
year. The Agent shall then notify RPM of the Lenders' decision
no later than 30 days before December 14th of that year. If the
Lenders decide to extend the Expiration Date, such extension
shall be effective on the effective date of a written amendment
so extending the Expiration Date, executed by the Agent, each
Lender and each Borrower.
2.09. ADDITIONAL INTEREST OF EUROCURRENCY ADVANCES. The
Borrowers shall pay to each Lender, when and if such Lender is
required under regulations of the Board of Governors of the U.S.
Federal Reserve System to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount
of each Eurocurrency Advance of such Lender from the date of each
such Eurocurrency Advance until the principal amount is paid in
full at an interest rate per annum equal at all times to the
remainder obtained by subtracting (i) the Eurocurrency Rate for
the Interest Period for such Eurocurrency Advance from (ii) the
rate obtained by dividing such Eurocurrency Rate by a percentage
equal to 100% minus the Eurocurrency Reserve Percentage of such
Lender for such Interest Period, payable on each date on which
interest is payable on such Eurocurrency Advance. Such
additional interest shall be determined by such Lender and
notified to the Borrowers through the Agent. Such determination
shall be conclusive and binding for all purposes, absent manifest
error.
2.10. INCREASED COSTS, ETC.
(a) If, due to either (i) the introduction of or any
change in or in the interpretation of any law or regulation
or (ii) the compliance with any guideline or request from
any central bank or other Governmental Authority (whether or
not having the force of law), there shall be any increase in
the cost to any Lender of agreeing to make or making,
funding or maintaining Eurocurrency Advances (other than the
additional amounts referred to in Section 2.09), then the
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<PAGE> 23
Borrowers shall from time to time, upon demand by such
Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased
cost. A certificate as to the amount of such increased
cost, submitted to RPM and the Agent by such Lender, shall
be conclusive and binding for all purposes, absent manifest
error.
(b) If any Lender determines that compliance with any
law or regulation or any guideline or request from any
central bank or other Governmental Authority (whether or not
having the force of law) affects or would affect the amount
of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the
existence of such Lender's commitment to lend hereunder and
other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the
Borrowers shall immediately pay to the Agent for the account
of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend hereunder. A
certificate as to such amounts submitted to RPM and the
Agent by such Lender shall be conclusive and binding for all
purposes, absent manifest error.
2.11. PREPAYMENTS; FUNDING LOSSES.
(a) Prepayments of Base Rate Advances are permitted on
two Business Days' written notice to the Agent. Prepayments
of Eurocurrency Advances are permitted on three Business
Days' written notice to the Agent, PROVIDED, that any
Borrower who prepays a Eurocurrency Advance reimburses each
Lender for its losses or expenses incurred or sustained as a
consequence of such prepayment in accordance with
Section 2.11(b).
(b) The Borrowers agree to reimburse each Lender and
to hold each Lender harmless from any loss or expense which
such Lender sustains or incurs as a consequence of:
(i) the failure of any Borrower to make any
payment or required prepayment of principal of any
Eurocurrency Advance (including payments made after any
acceleration thereof);
(ii) the failure of any Borrower to borrow,
continue or convert an Advance after such Borrower has
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<PAGE> 24
given a Notice of Borrowing or a Notice of Conversion/
Continuation;
(iii) the failure of any Borrower to make any
prepayment permitted hereunder after giving notice
thereof;
(iv) the repayment of a Eurocurrency Advance
on a day which is not the last day of the Interest
Period with respect thereto; or
(v) the conversion of any Eurocurrency
Advance to a Base Rate Advance on a day that is not the
last day of the respective Interest Period;
including any such loss or expense (including any loss of income)
arising from the liquidation or reemployment of funds obtained by
it to maintain its Eurocurrency Advances hereunder or from fees
payable to terminate the deposits from which such funds were
obtained. Reemployment costs shall include the amount (if any)
by which the amount of interest which such Lender is able to
obtain for the remainder of the period of the Eurocurrency
Advance by placing the principal amount repaid by the Borrower on
deposit in the applicable interbank market IS LESS than the
amount of interest which would have accrued on the amount prepaid
for the remaining period thereon if no repayment had taken place.
A certificate delivered by the Agent as to the determination of
the reemployment cost shall be conclusive and binding on the
Borrower absent manifest error. Solely for purposes of
calculating amounts payable by the Borrowers to the Lenders under
this Section 2.11, each Eurocurrency Advance made by a Lender
(and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded by
a matching deposit in Dollars or an Alternative Currency or other
borrowing in the interbank eurocurrency market for a comparable
amount and for a comparable period, whether or not such
Eurocurrency Advance is in fact so funded.
2.12. INABILITY TO DETERMINE RATES. If the Agent
determines that for any reason adequate and reasonable means do
not exist for ascertaining the rate for any requested Interest
Period with respect to a proposed Eurocurrency Advance, or the
rate for any requested Interest Period with respect to a proposed
Eurocurrency Advance does not fairly reflect the cost to the
Lenders of funding such Advance, the Agent will give notice of
the determination to the Borrowers and each Lender. Thereafter,
the obligation of the Lenders to make or maintain Eurocurrency
Advances hereunder shall be suspended until the Agent revokes
such notice in writing. Upon receipt of the Agent's notice of
its inability to determine rates, the Borrowers may revoke any
Notice of Borrowing or Notice of Conversion/Continuation. If the
applicable Borrower does not revoke such notice, the Lenders
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shall make, convert or continue the Advances, as proposed by the
Borrower, in the amount specified in the applicable notice
submitted by the Borrower, but such Advances shall be made,
converted or continued as Base Rate Advances (in the same
currency) instead of Eurocurrency Advances.
2.13. TAXES.
(a) Any and all payments by the Borrowers hereunder
shall be made free and clear of and without deduction or
withholding for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of
each Lender and the Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the
laws of which such Lender or the Agent (as the case may be)
is organized or any political subdivision thereof and, in
the case of each Lender, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction of such
Lender's Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrowers or the Agent
shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender or the
Agent, (i) the sum payable by the Borrowers shall be
increased as may be necessary so that after the Borrowers or
the Agent has made all required deductions (including
deductions applicable to additional sums payable under this
Section 2.13) such Lender or the Agent (as the case may be)
receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrowers or the
Agent shall make such deductions and (iii) the Borrowers or
the Agent shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with
applicable law.
(b) In addition, each Borrower agrees to pay any
present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies which
arise from any payment made by such Borrower or by the Agent
hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement
(hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Lender and the
Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this
Section 2.13) paid by such Lender or the Agent (as the case
may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This
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indemnification shall be made within 30 days from the date
such Lender or the Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment by
any Borrower of Taxes, such Borrower will furnish to the
Agent the original or a certified copy of a receipt
evidencing payment thereof. If no Taxes are payable in
respect of payments by such Borrower hereunder, such
Borrower, upon reasonable request by Agent, will furnish to
the Agent a certificate from each appropriate taxing
authority, unless it shall have previously delivered an
opinion of counsel acceptable to the Agent, in either case
stating that such payment is exempt from or not subject to
Taxes. In the event of a change in circumstances or law
affecting the conclusions stated in any such opinion,
another opinion of counsel acceptable to the Agent shall be
delivered to the Agent by the affected Borrower.
(e) Prior to the date of the initial Borrowing and
from time to time thereafter if requested by any Borrower or
the Agent, each Lender organized under the laws of a
jurisdiction outside the United States shall provide the
Agent and the Borrower with the forms prescribed by the
Internal Revenue Service of the United States certifying as
to such Lender's status for purposes of determining
exemption from United States withholding taxes with respect
to all payments to be made to such Lender hereunder or other
documents satisfactory to the Borrowers and the Agent which
shall indicate that all payments to be made to such Lender
hereunder are subject to such taxes at a rate reduced by an
applicable tax treaty. Unless the Borrowers and the Agent
have received forms (such as IRS Form 1001 or Form 4224) or
other documents satisfactory to them, indicating that
payments hereunder are not subject to United States
withholding tax or are subject to such tax at a rate reduced
by an applicable tax treaty, the Borrowers or the Agent
shall withhold taxes from such payments at the applicable
statutory rate in the case of payments to or for any Lender
organized under the laws of a jurisdiction outside the
United States. In no event shall a Borrower be required to
pay any additional amounts to the Agent or any Lender under
Section 2.13(a) as a result of, or in connection with, the
failure of a Lender to comply with this Section 2.13(e).
(f) In order to avoid the incurrence, or minimize.the
amount, of any Taxes or Other Taxes, each Lender agrees to
designate a different Lending Office with respect to its
Eurocurrency Advances if such designation will reduce or
prevent the incurrence of such Taxes or Other Taxes and will
not, in the judgment of such Lender, be illegal or otherwise
disadvantageous to such Lender.
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2.14. ILLEGALITY.
(a) If any Lender determines that the introduction of
any law or regulation, or any change in any law or
regulation or in the interpretation or administration
thereof, has made it unlawful, or that any central bank or
other Governmental Authority has asserted that it is
unlawful, for any Lender or its Lending Office to make
Eurocurrency Advances, then, on notice thereof by the Lender
to the Borrowers through the Agent, the obligation of that
Lender to make Eurocurrency Advances shall be suspended
until the Lender has notified the Agent and the Borrowers
that the circumstances giving rise to such determination no
longer exists.
(b) If a Lender determines that it is unlawful to
maintain any Eurocurrency Advance, the Borrowers shall
prepay in full all Eurocurrency Advances of that Lender then
outstanding, together with interest accrued thereon, either
on the last day of the Interest Period thereof if the Lender
may lawfully continue to maintain such Eurocurrency Advances
to such day, or immediately, if the Lender may not lawfully
continue to maintain such Eurocurrency Advances.
(c) If the Borrowers are required to prepay any
Eurocurrency Advances immediately as provided in Section
2.14(b), then concurrently with such prepayment, such
Borrowers shall borrow from the affected Lender, in the
amount of such repayment, a Base Rate Advance.
(d) Before giving any notice to the Agent pursuant to
this Section 2.14, the affected Lender shall designate a
different Lending Office with respect to its Eurocurrency
Advances if such designation will avoid the need for giving
such notice or making such demand and will not, in the
judgment of such Lender, be illegal or otherwise
disadvantageous to such Lender.
2.15. SHARING OF PAYMENTS, ETC. If any Lender obtains any
payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) on account of the Advances
made by it in excess of its ratable share of payments on account
of the Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in
the Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each
of them, PROVIDED, HOWEVER, that if all or any portion of such
excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion
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of (a) the amount of such Lender's required repayment to (b) the
total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. The Borrower agrees
that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the
amount of such participation. The provisions of this
Section 2.15 shall survive the payment of all Obligations.
2.16. EVIDENCE OF INDEBTEDNESS.
(a) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from
each Advance owing to such Lender from time to time,
including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.
(b) The Agent shall maintain a control account and a
subsidiary account for each Lender, in which accounts (taken
together) shall be recorded (i) the date and amount of each
Borrowing made hereunder, (ii) the name of the Borrower,
(iii) the Type of Advances comprising such Borrowing and the
Interest Period applicable thereto and, if such Advances are
Eurocurrency Advances, the currency in which such Advances
are made, (iv) the amount of any principal or interest due
and payable or to become due and payable from each Borrower
to each Lender hereunder, and (v) the amount of any sum
received by the Agent from the Borrowers hereunder and each
Lender's share thereof.
(c) Such entries made by the Agent shall be conclusive
and binding for all purposes, absent manifest error.
2.17. CURRENCY EQUIVALENTS. For purposes of the provisions
of this Article II, (a) the equivalent in Dollars of any
Alternative Currency shall be determined by using the quoted spot
rate at which Credit Lyonnais Belgium's principal office in
Brussels offers to exchange Dollars for such Alternative Currency
in Brussels at 11:00 a.m. (Brussels time) two Business Days prior
to the date on which such equivalent is to be determined, (b) the
equivalent in any Alternative Currency of any other Alternative
Currency shall be determined by using the quoted spot rate at
which Credit Lyonnais Belgium's principal office in Brussels
offers to exchange such Alternative Currency for the equivalent
in Dollars of such other Alternative Currency in Brussels at
11:00 a.m. (Brussels time) two Business Days prior to the date on
which such equivalent is to be determined, and (c) the equivalent
in any Alternative Currency of Dollars shall be determined by
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<PAGE> 29
using the quoted spot rate at which Credit Lyonnais Belgium's
principal office in Brussels offers to exchange such Alternative
Currency for Dollars in Brussels at 11:00 a.m. (Brussels time)
two Business Days prior to the date on which such equivalent is
to be determined.
2.18 CURRENCY FLUCTUATIONS. If, on any Interest Payment
Date related to a Eurocurrency Advances, the aggregate principal
amount of all the Advances (after converting each Eurocurrency
Advance to its U.S. Dollar equivalent on the date of calculation)
is equal to or greater than 120% of the Commitment then in
effect, then at the option of any Lender upon five Business Days'
written notice to the Company, the Company shall prepay or shall
cause one or more other Borrowers to prepay, an aggregate
principal amount of Advances such that the outstanding principal
balance of the Advances does not exceed the Commitment. In lieu
of requiring this payment under this Section 2.18, the Agent may,
with the unanimous consent of all of the Lenders, in their
absolute and sole discretion, increase the amount of the
Commitment.
2.19. SURVIVAL. The agreements and obligations of the
Borrowers in Sections 2.09 through 2.11 and 2.13 shall survive
for a period of one year beyond the later of (a) the Termination
Date and (b) the payment of all other Obligations.
ARTICLE III
GUARANTY
3.01. GUARANTY. RPM unconditionally guarantees the
punctual payment and performance when due, in Dollars (or the
equivalent thereof in any Alternative Currency), whether at
stated maturity, by acceleration or otherwise, of all Subsidiary
Obligations.
3.02. GUARANTY ABSOLUTE. This is a guaranty of payment and
not of collection. RPM guarantees that the Subsidiary
Obligations will be paid strictly in accordance with the terms of
this Agreement. The Obligations of RPM under this guaranty are
independent of the Subsidiary Obligations, and a separate action
or actions may be brought and prosecuted against RPM to enforce
this guaranty, whether or not any action is brought against the
Subsidiary Borrowers or whether the Subsidiary Borrowers are
joined in any such action or actions. This guaranty shall
continue to be effective or shall be reinstated, as the case may
be, if at any time any payment of any of the Subsidiary
Obligations is rescinded or must otherwise be returned by the
Lenders upon the insolvency, bankruptcy or reorganization of any
of the Subsidiary Borrowers or otherwise, all as though such
payment had not been made. The liability of RPM under this
guaranty shall be absolute and unconditional irrespective of:
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(a) any lack of validity or enforceability of any
other portion of this Agreement (including, without
limitation, the validity or enforceability against the
Subsidiary Borrowers of the Subsidiary Obligations) or any
other agreement or instrument relating hereto;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Subsidiary
Obligations, or any other amendment or waiver of or any
consent to departure from this Agreement, including, without
limitation, any increase in the Subsidiary Obligations
resulting from the extension of additional credit to the
Subsidiary Borrowers or otherwise;
(c) any change, restructuring or termination of the
corporate structure or existence of any of the Subsidiary
Borrowers; or
(d) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Subsidiary Borrowers or a guarantor.
3.03. WAIVER. RPM hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of
the Subsidiary Obligations, and any requirement that the Lenders
exhaust any right or take any action against the Subsidiary
Borrowers or any other Person.
3.04. SUBROGATION. RPM hereby acknowledges and agrees that
any obligations owed by any Subsidiary Borrower to RPM, now or
hereafter arising, in connection with this Agreement or pursuant
to this guaranty are hereby subordinated to the Indebtedness of
the Subsidiary Borrowers to the Lenders and the Agent. RPM
hereby unconditionally agrees that until the payment and
satisfaction in full of all the Subsidiary Obligations, RPM:
(a) shall not exercise any right or remedy arising by reason of
any performance by RPM of its guarantee in this Article III,
whether by subrogation or otherwise, against the Subsidiary
Borrowers or any security for any of the Subsidiary Obligations,
and (b) shall promptly turn over to the Agent any funds or
collateral received by RPM from the Subsidiary Borrowers on
account of or relating to the Subsidiary Obligations or RPM's
payment of any portion to the Subsidiary Obligations (and RPM
shall hold any such funds or collateral in trust for the benefit
of the Lenders until such funds or collateral are delivered to
the Agent); PROVIDED, HOWEVER, RPM shall not be obligated to turn
over any funds or collateral received by RPM from the Subsidiary
Borrowers in the ordinary course of business if such funds or
collateral were not paid or delivered to RPM in connection with
the Subsidiary Obligations.
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ARTICLE IV
CONDITIONS OF LENDING
4.01. CONDITION PRECEDENT TO INITIAL ADVANCES. The
obligation of the Lenders to make the initial Advance is subject
to the conditions precedent that the Borrower shall have paid all
fees and expenses due on the Closing Date, and the Agent shall
have received on or before the day of the initial Borrowing the
following, in form and substance satisfactory to the Agent and in
sufficient copies for each Lender:
(a) This Agreement, executed by all the Borrowers;
(b) Certified copies of the resolutions of the Board
of Directors of RPM authorizing the Borrowings provided for
herein and the execution, delivery and performance of this
Agreement; equivalent documents for each Subsidiary
Borrower; and, with respect to all the Borrowers, certified
copies of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to
this Agreement;
(c) Copies of the articles or certificate of
incorporation of RPM, including all amendments thereto and
copies of the by-laws of RPM as in effect on the Closing
Date, with all amendments thereto, certified by the
secretary or assistant secretary of RPM;
(d) An existence and/or good standing certificate for
RPM from the Secretary of State of Ohio as of a recent date;
(e) A certificate of the secretary or an assistant
secretary of RPM certifying the names and true signatures of
the officers of each Borrower authorized to sign this
Agreement and the other documents to be delivered hereunder;
(f) A favorable opinion of Paul A. Granzier, General
Counsel for RPM, substantially in the form of EXHIBIT D
hereto and as to such other matters as any Lender through
the Agent may reasonably request; and
(g) Such other approvals, opinions or documents as the
Agent or any Lender may request.
4.02. CONDITIONS PRECEDENT TO EACH BORROWING. The
obligation of the Lenders to make an Advance is subject to the
satisfaction of the following conditions precedent on or before
the date the relevant Advance is to be made:
(a) With respect to each Borrowing, conversion or
continuation, the Agent shall have received a Notice of
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Borrowing or a Notice of Continuation/Conversion, as
applicable.
(b) The representations and warranties made by the
Borrowers contained in Article V shall be true and correct
on and as of the date of each Borrowing with the same effect
as if made on and as of such date (except to the extent such
representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of
such earlier date).
(c) No Default or Event of Default shall exist or
shall result from such Advance.
(d) The Borrowers shall have paid all fees and
expenses due at such time.
Each Notice of Borrowing or Notice of Continuation/Conversion
submitted by a Borrower hereunder shall constitute a
representation and warranty by such Borrower hereunder, as of the
date of each such notice and as of the date of the making of each
Advance, that the conditions in this Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
With respect to Sections 5.05 and 5.06, RPM represents and
warrants, and with respect to Sections 5.01 through 5.04 and
Sections 5.07 through 5.17, each Borrower represents and warrants
as follows.:
5.01. DUE ORGANIZATION. Such Borrower is a corporation
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation as indicated at the
beginning of this Agreement, and is duly qualified as a foreign
corporation and in good standing under the laws of each
jurisdiction in which it owns or leases real property or in which
such qualification is otherwise required.
5.02. DUE AUTHORIZATION. The execution, delivery and
performance by such Borrower of this Agreement are within such
Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) such
Borrower's charter or by-laws or (ii) any law or contractual
restriction binding on or affecting such Borrower.
5.03. NO GOVERNMENTAL APPROVAL. No authorization or
approval or other action by, and no notice to or filing with, any
Governmental Authority or regulatory body is required for the due
execution, delivery and performance by such Borrower of this
Agreement.
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<PAGE> 33
5.04. ENFORCEABLE AGREEMENT. This Agreement is the legal,
valid and binding obligation of such Borrower enforceable against
such Borrower in accordance with its terms. The guaranty
contained in Article III is enforceable against RPM in accordance
with its terms.
5.05. FINANCIAL INFORMATION. The consolidated balance
sheets of RPM and its Subsidiaries as of May 31, 1993, and the
related consolidated statements of income and retained earnings
of RPM and its Subsidiaries for the fiscal year then ended,
copies of which have been furnished to each Lender, fairly
present the financial condition of RPM and its Subsidiaries as at
such date and the results of the operations of RPM and its
Subsidiaries for the period ended on such date, all in accordance
with GAAP consistently applied, and since May 31, 1993, there has
been no material adverse change in such condition or operations.
5.06. LITIGATION. There is no pending or threatened action
or proceeding affecting RPM or any of its Subsidiaries before any
court, Governmental Authority or arbitrator, that has not been
previously disclosed in RPM's filings with the SEC, or that may
result in a Materially Adverse Effect, or that purports to affect
the legality, validity or enforceability of this Agreement as to
any one of the Borrowers, except as disclosed on SCHEDULE 5.06
attached hereto.
5.07. MARGIN STOCK. Such Borrower is not engaged in the
business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U issued
by the Board of Governors of the U.S. Federal Reserve System),
and no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
5.08. NO DEFAULT. No Default or Event of Default has
occurred and is continuing or would result from the incurring of
any Obligations by such Borrower. Such Borrower is not in
default under or with respect to any material Contractual
Obligation.
5.09. ERISA COMPLIANCE. Each ERISA Affiliate has fulfilled
its obligations under the minimum funding standards of ERISA and
the Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of
ERISA and the Code with respect to each Plan or will be in such
compliance prior to the expiration of the remedial amendment
period permitted under Section 401(b) of the Code as such
remedial amendment period shall be extended by the Internal
Revenue Service. No ERISA Affiliate has (a) sought a waiver of
the minimum funding standard under Section 412 of the Code in
respect of any Plan, (b) failed to make any contribution or
payment to any Plan or made any amendment to any Plan, which has
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resulted or could result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Code or
(c) incurred any liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007 of ERISA.
5.10. TITLE TO PROPERTIES. Such Borrower has good and
marketable title to each item of real or personal property
purported to be owned by it (including intangibles such as
trademarks and patents) and a valid, enforceable and marketable
leasehold interest in each item of real and personal property
purported to be leased by it, in each case free and clear of all
Liens other than Permitted Liens.
5.11. TAXES. Such Borrower has filed all tax returns and
reports required to be filed by any Governmental Authority, and
has paid all taxes, assessments, fees and other governmental
charges levied or imposed upon it or its properties, income or
assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance with GAAP (or
the comparable accounting standards of such Borrower's country),
and no notice of lien has been filed or recorded. There is no
proposed tax assessment against such Borrower which would, if the
assessment were made, reasonably be expected to adversely affect
the ability of the Lenders to collect the Advances.
5.12. ENVIRONMENTAL MATTERS. Except as has been previously
reported in RPM's filings with the SEC or as is specifically
disclosed in SCHEDULE 5.12:
(a) The on-going operations of such Borrower comply
in all material respects with all Environmental Laws, except
for those circumstances that would not (if enforced in
accordance with applicable law) result in liability that
would reasonably be expected to have a Material Adverse
Effect.
(b) Neither such Borrower nor any of its property or
operations is subject to any outstanding written order from
or agreement with any Governmental Authority nor subject to
any judicial or docketed administrative proceeding,
respecting any Environmental Law, Environmental Claim or
Hazardous Material that the outcome or result of which would
reasonably be expected to have a Material Adverse Effect.
(c) There are no Hazardous Materials or other
conditions or circumstances existing with respect to any
property, or arising from operations, of such Borrower or
any of its Subsidiaries that would reasonably be expected to
give rise to Environmental Claims with a potential liability
that in the aggregate for any such condition, circumstance
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<PAGE> 35
or property would reasonably be expected to have a Material
Adverse Effect.
5.13. USE OF PROCEEDS. The proceeds of the Advances are
being used by such Borrower for general corporate purposes
(including debt refinancing) and will not be used for the
purchase or carrying of Margin Stock in violation of
Regulations U or X of the Board of Governors of the U.S. Federal
Reserve System.
5.14. REGULATED ENTITIES. The Borrower is not an
"investment company" or an "affiliated person" or a "promoter" or
a "principal underwriter" for an "investment company," as such
terms are defined in the U.S. Investment Company Act of 1940, as
amended.
5.15. SUBSIDIARIES; NO RESTRICTIONS ON DIVIDENDS. Such
Borrower has no Subsidiaries other than those specifically
disclosed on SCHEDULE 5.15 attached hereto. No Subsidiary of
such Borrower is prohibited by the terms of any agreement from
paying dividends to such Borrower.
5.16. INSURANCE. The property of such Borrower is insured
with financially sound and reputable insurance companies, in such
amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses
and owning similar properties in localities where such Borrower
operates.
5.17. COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC.
Such Borrower or its Subsidiaries own or are licensed or
otherwise have the right to use all of the patents, trademarks,
service marks, trade names, copyrights, franchises,
authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict
with the rights of any other Person. To the best knowledge of
such Borrower, no slogan or other advertising device, product,
process, method, substance, part or other material now employed,
or now contemplated to be employed by such Borrower or any of its
Subsidiaries, infringes upon any rights held by any other Person.
Except as specifically disclosed in SCHEDULE 5.06, no claim or
litigation regarding any of the foregoing is pending or
threatened, and no patent, invention, device, application,
principle or any statute, law, rule, regulation, standard or code
is pending or, to the knowledge of such Borrower, proposed, that
has not been previously disclosed in RPM's filings with the SEC,
which, in either case, could reasonably be expected to have a
Material Adverse Effect.
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ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Advance or other Obligation remains unpaid or
unsatisfied or the Commitment remains available, with respect to
Sections 6.04 through 6.11, each Borrower will, and will cause
its Subsidiaries to, and with respect to Sections 6.01 through
6.03, RPM will:
6.01. FINANCIAL STATEMENTS. Deliver to the Agent in form
and detail satisfactory to the Agent with sufficient copies for
each Lender:
(a) as soon as available, but not later than 120 days
after the end of each fiscal year, a copy of the audited
financial statements of such Borrower as of the end of such
fiscal year, setting forth in each case in comparative form
the figures for the previous year, and accompanied by an
opinion of the independent public accounting firm of Ciulla
Stephens & Co. stating that such financial statements
present fairly the financial position of such Borrower as of
the dates indicated and the results of its operations and
cash flows for the periods indicated in conformity with GAAP
(or the comparable accounting standards of its country).
Such opinion shall not be qualified or limited for any
reason, including, without limitation, because of a
restricted or limited examination by such accountant of any
material portion of such Borrower's records; and
(b) as soon as available, but not later than 60 days
after the end of each of such Borrower's three non-year-end
fiscal quarters, a copy of the unaudited financial
statements of such Borrower setting forth its financial
position as of the end of such fiscal quarter and the
results of its operations and its cash flows for such
quarter, prepared in accordance with GAAP (or the comparable
accounting standards of such Borrower's country)
consistently applied.
6.02. CERTIFICATES; OTHER INFORMATION. Furnish to the
Agent with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial
statements referred to in Sections 6.01(a) and (b) above, a
Compliance Certificate, signed by the chief financial
officer of such Borrower, and if any condition or event
which constitutes a Default or any Event of Default existed
or exists, a statement in such certificate specifying the
nature and period of existence thereof and the action such
Borrower has taken, is taking or proposes to take with
respect thereto;
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(b) promptly upon their becoming available,
copies all 10-Q's, 10-K's, 8-K's and all other material
registration statements and all periodic reports, if
any, which such Borrower shall have filed with (i) the
U.S. Securities and Exchange Commission (or any
successor agency), (ii) any national security exchange
or (iii) any other Governmental Authority; and
(c) promptly, such additional business, financial,
corporate affairs and other information as the Agent, at the
request of any Lender, may from time to time reasonably
request.
6.03. NOTICES. Promptly notify the Agent and each Lender
of the following conditions, events or situations to the extent
they have not been previously disclosed in RPM's filings with the
SEC:
(a) the occurrence of any Default or Event of Default;
(b) (i) any breach or non-performance of, or any
default under, any Contractual Obligation of such Borrower
which could result in a Material Adverse Effect; and
(ii) any dispute, litigation, investigation, proceeding or
suspension which may exist at any time between such Borrower
and any Governmental Authority which could result in a
Material Adverse Effect;
(c) the commencement of, or any material development
in, any litigation or proceeding affecting such Borrower
(i) which has a reasonable possibility of resulting in
liability to the Borrower in the amount of $10,000,000 or
more, (ii) in which injunctive or similar relief is sought
and which, if adversely determined, would reasonably be
expected to have a Material Adverse Effect, or (iii) in
which the relief sought is an injunction or other stay of
the performance of this Agreement;
(d) (i) any and all enforcement, cleanup, removal or
other governmental or regulatory actions instituted or
threatened against such Borrower or any of its properties
pursuant to any applicable Environmental Laws, (ii) all
other Environmental Claims, and (iii) any environmental or
similar condition on any real property adjoining or in the
vicinity of the property of such Borrower that could
reasonably be anticipated to cause the property of such
Borrower or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or
use of such property under any Environmental Laws, if,
individually or in the aggregate, the events or conditions
described or the amount claimed in clauses (i), (ii) and
(iii) could result in a Material Adverse Effect;
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(e) any of the following ERISA events affecting such
Borrower or any member of its Controlled Group which,
individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect (but in no event
more than 10 days after the later of such event or the date
such Borrower knew or should have known of such event),
together with a copy of any notice with respect to such
event that may be required to be filed with a Governmental
Authority and is then due and any notice delivered by a
Governmental Authority to such Borrower or any member or its
Controlled Group with respect to such event:
(i) an ERISA Event;
(ii) the adoption of any new Plan that is subject
to Title IV of ERISA or Section 412 of the Code by any
member of the Controlled Group;
(iii) the adoption of any amendment to a Plan that
is subject to Title IV of ERISA or Section 412 of the
Code; or
(iv) the commencement of contributions by any
member of the Controlled Group to any Plan that is
subject to Title IV of ERISA or Section 412 of the
Code;
(f) any Material Adverse Effect subsequent to the date
of the most recent audited financial statements of RPM and
its Subsidiaries delivered to the Lenders pursuant to
Section 6.01(a).
Each notice pursuant to this section shall be accompanied by
a written statement signed by the chief financial officer of RPM
setting forth details of the occurrence referred to therein, and
stating what action RPM proposes to take with respect thereto and
at what time. Each notice under Section 6.03(a) shall describe
with particularity the provisions of this Agreement that have
been breached.
6.04. PRESERVATION OF CORPORATE EXISTENCE RIGHTS, ETC.
(a) Except as permitted in Section 7.02, maintain and
preserve in full force and effect its corporate (or other
form of) existence and good standing under the laws of its
jurisdiction of incorporation.
(b) Maintain and preserve all rights, privileges,
franchises, trademarks, trade names, service marks,
licenses, qualifications and other like rights now enjoyed
and necessary or useful in the operation of its business and
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<PAGE> 39
keep all of its property in good working order and
condition, normal wear and tear excepted.
(c) Maintain and preserve the good will and business
of the customers, suppliers and others having material
business relations with it.
6.05. INSURANCE. Maintain with financially sound and
reputable independent insurers, insurance with respect to its
properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other
Persons; including workers' compensation insurance, public
liability and property and casualty insurance. Upon request of
the Agent or any Lender, such Borrower shall furnish the Agent,
with sufficient copies for each Lender, at reasonable intervals,
a certificate of the chief financial officer of RPM (and, if
requested by the Agent, any insurance broker of such Borrower)
setting forth the nature and extent of all insurance maintained
by such Borrower in accordance with this Section 6.05.
6.06. PAYMENT OF OBLIGATIONS. Pay all taxes, assessments,
governmental charges and other obligations when due, except as
may be contested in good faith or those as to which a bona fide
dispute may exist and for which adequate reserves have been
provided if required by GAAP (or the comparable accounting
standards of such Borrower's country) and the non-payment of
which does not affect the Borrower's title to or right to use any
of its property.
6.07. COMPLIANCE WITH LAWS. Comply in all material
respects with all material regulations and requirements of any
Governmental Authority having jurisdiction over it or its
business, except such as may be contested in good faith or as to
which a bona fide dispute may exist.
6.08. INSPECTION OF PROPERTY AND BOOKS AND RECORDS.
Maintain proper books of record and account in conformity with
GAAP (or the comparable accounting standards of such Borrower's
country) consistently applied and permit representatives and
independent contractors of the Agent or any Lender to visit and
inspect any of its properties, to examine corporate, financial
and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with
its respective officers and independent public accountants at
such reasonable times during normal business hours and as often
as may be reasonably desired.
6.09. ENVIRONMENTAL LAWS. Conduct its operations and keep
and maintain its property in material compliance with all
Environmental Laws.
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<PAGE> 40
6.10. USE OF PROCEEDS. Use the proceeds of the Advances
solely to refinance Indebtedness and other general lawful
corporate purposes.
6.11. FURTHER ASSURANCES. Execute and deliver to the Agent
such further instruments and do such other further acts as the
Agent or the Lenders may reasonably request to carry out more
effectively the purposes of this Agreement and any related
documents.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Advance or other Obligation remains unpaid or
unsatisfied or the Commitment remains available, with respect to
Sections 7.01 through 7.06, each Borrower will not, and, will not
permit its Subsidiaries to, and with respect to Sections 7.07
through 7.10, RPM will not:
7.01. LIENS, ETC. Create or suffer to exist any Lien or
any other type of preferential arrangement, upon or with respect
to any of its properties, whether now owned or hereafter
acquired, or assign any right to receive income, in each case to
secure or provide for the payment of any Indebtedness of any
Person, other than the following ("Permitted Liens"):
(a) Purchase money liens or purchase money
security interests upon or in any property acquired or
held by such Borrower or Subsidiary in the ordinary
course of business to secure the purchase price of such
property or to secure Indebtedness incurred solely for
the purpose of financing the acquisition of such
property;
(b) Any Lien existing on the property of such
Borrower or Subsidiary on the Closing Date and any
extension, renewal or replacement Lien (each a
"Replacement Lien") arising out of the extension,
renewal or replacement of the related obligation
secured by such Lien, so long as any such Replacement
Lien does not extend to property not covered by the
Lien replaced or renewed;
(c) Liens for taxes, fees, assessments or other
governmental charges or statutory obligations which are
not delinquent or remain payable without penalty, or to
the extent that non-payment thereof is permitted by
Section 5.11, provided that no notice of Lien has been
filed or recorded under the Code;
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(d) Liens arising in the ordinary course of
business in connection with obligations that are not
overdue or which are being contested in good faith and
by appropriate proceedings, including, but not limited
to Liens under bid, performance and other surety bonds,
supersedes and appeal bonds, Liens on advance or
progress payments received from customers under
contracts for the sale, lease or license of goods,
software or services and upon the products being sold
or licensed, in each case securing performance of the
underlying contract or the repayment of such advances
in the event final acceptance of performance under such
contracts does not occur; and Liens upon funds
collected temporarily from others pending payment or
remittance on their behalf;
(e) Liens (other than any Lien imposed by ERISA)
required in ordinary course of business in connection
with workers' compensation, unemployment insurance and
other social security legislation;
(f) Easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from
the value of the property subject thereto or interfere with
the ordinary conduct of the businesses of such Borrower or
Subsidiary;
(g) Liens arising solely by virtue of any
statutory or common law provision relating to banker's
liens, rights of set-off or similar rights and remedies
as to deposit accounts or other funds maintained with a
creditor depository institution; PROVIDED THAT (i) such
deposit account is not a dedicated cash collateral
account and is not subject to restrictions against
access by such Borrower or Subsidiary in excess of
those set forth by regulations promulgated by the U.S.
Federal Reserve Board or other central bank or similar
Governmental Authority, and (ii) such deposit account
is not intended by such Borrower or Subsidiary to
provide collateral to the depository institution;
(h) Any Lien on any asset existing at the time
such asset is acquired by such Borrower or Subsidiary
or is merged into or consolidated with such Borrower or
Subsidiary and not created in contemplation of such
event and any Replacement Lien (as defined in clause
(b) above) arising out of the extension, renewal or
replacement of the related obligation secured by such
Lien, so long as any such Replacement Lien does not
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extend to property not covered by the Lien replaced or
renewed;
PROVIDED that the aggregate principal amount of the Indebtedness
secured by the Liens referred to in clauses (a), (b) and (h)
above shall not at any time exceed five percent of RPM's
Consolidated Total Assets.
7.02. MERGERS, CONSOLIDATIONS AND DISPOSITIONS OF ASSETS.
Sell, assign, lease, convey, transfer or otherwise dispose of
(whether in one or a series of related transactions) any of its
or its Subsidiaries' outstanding capital stock, or (other than in
the ordinary course of business) any of its property or assets
(including accounts and notes receivable, with or without
recourse) to any Person, or consolidate with or merge into any
other Person, PROVIDED, however, this Section 7.02 shall not
apply to or restrict:
(a) the merger or consolidation of such Borrower
or Subsidiary into RPM, or with or into any other
Borrower or Subsidiary of a Borrower or RPM;
(b) the transfer by such Borrower or Subsidiary
of any assets (upon voluntary liquidation or otherwise)
to RPM, a Borrower or a Wholly-Owned Subsidiary of RPM
or a Borrower;
(c) transfers of property not used or useful in
the business of the Borrowers and their Subsidiaries;
(d) the sale of equipment to the extent that such
equipment is exchanged for credit against the purchase
price of similar replacement equipment, or the proceeds
of such sale are reasonably promptly applied to the
purchase price of such replacement equipment;
(e) transfers of assets not otherwise permitted
hereunder (whether by merger, consolidation or
otherwise) occurring after the Closing Date which are
made for fair market value; PROVIDED, that (i) at the
time of any transfer, no Event of Default exists or
would result from such transfer and (ii) the aggregate
net book value of all assets so transferred by the
Borrowers and their Subsidiaries shall not exceed
$50,000,000 (or its equivalent in any Alternative
Currency) in any one fiscal year.
7.03. USE OF PROCEEDS. Use any portion of any Advance,
directly or indirectly, (i) to purchase or carry Margin Stock,
(ii) to repay or otherwise refinance Indebtedness of the
Borrowers, their Subsidiaries or others incurred to purchase or
carry Margin Stock, (iii) to extend credit for the purpose of
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purchasing or carrying any Margin Stock, or (iv) to acquire any
security in any transaction that is subject to Section 13 or 14
of the Exchange Act.
7.04. COMPLIANCE WITH ERISA.
(a) Terminate any Plan subject to Title IV of
ERISA so as to result in any material liability to any
Borrower or any ERISA Affiliate;
(b) Permit to exist any ERISA Event which is
reasonably likely to result in a material liability to
any members the Controlled Group;
(c) Make a complete or partial withdrawal (within
the meaning of ERISA Section 4201) from any
Multiemployer Plan so as to result in any material
Withdrawal Liabilities to any Borrower or any ERISA
Affiliate;
(d) Enter into any new Plan or amend any existing
Plan if doing so is reasonably likely to result in any
material increase in liability to any member of the
Controlled Group and is neither required by law nor
necessary to satisfy qualification requirements in the
case of a Qualified Plan; or
(e) Permit the present value of all
nonforfeitable accrued benefits under any Qualified
Plan (other than a Multiemployer Plan) to exceed, to a
materially greater extent than that disclosed in a
report prepared by an actuary with respect to the Plans
previously provided to the Lenders, the fair market
value of Plan assets allocable to such benefits, if the
liability accruing to any Borrower as a result of the
excess would result in a Material Adverse Effect,
PROVIDED, that for purposes of this clause (e)
determination of such excess at any time will be made
on a Plan termination basis applying the actuarial
factors that would be used by the PBGC either as of the
Closing Date or as of the date in question, whichever
results in a smaller excess, and will otherwise be
based on the information set forth in the most recently
completed actuarial valuation with respect to such
Plan.
7.05. ACCOOUNTING CHANGES. Make any material change in
accounting treatment or reporting practices, except (a) as
required or permitted by GAAP (or the comparable accounting
standards of such Borrower or Subsidiary's country) and (b) as
disclosed in the notes accompanying the financial statements
delivered pursuant to Sections 6.01(a) and (b) hereof.
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7.06. CONTRACTS OF SUBSIDIARIES. Enter into any agreement
restricting the ability of any Subsidiary to pay dividends to any
Borrower or any Subsidiary of any Borrower.
7.07. MINIMUM TANGIBLE NET WORTH. Permit its Consolidated
Tangible Net Worth to be less than $240,000,000.
7.08. LEVERAGE RATIO. Permit the ratio of (a) its
Consolidated Total Liabilities minus the outstanding principal
balance of the RPM Subordinated Debt to (b) its Consolidated
Tangible Net Worth to exceed 1.5 to 1.
7.09. RATIO OF LONG-TERM DEBT TO CAPITALIZATION. Permit
its Consolidated Long-Term Debt to exceed 60% of its Consolidated
Capitalization.
7.10. RATIO OF EBIT TO INTEREST EXPENSE. Permit its ratio
of (a) EBIT to (b) Consolidated Interest Expense to be less than
3.00 to 1.00.
ARTICLE VIII
EVENTS OF DEFAULT
8.01. EVENTS OF DEFAULT. Any of the following shall
constitute an "Event of Default":
(a) A Borrower fails to pay any principal of, or
interest on, any Advance when the same becomes due and
payable; or
(b) Any representation or warranty made by a Borrower
herein or in any document delivered to the Lenders in
connection with this Agreement proves to have been incorrect
in any material respect when made; or
(c) A Borrower fails to perform or observe any other
term, covenant or agreement contained in this Agreement on
its part to be performed or observed and the failure to
perform or observe such other term, covenant or agreement
remains unremedied for 30 days; or
(d) A Borrower or any of its Subsidiaries fails to pay
any principal of or premium or interest on any Indebtedness
which is outstanding in a principal amount of at least
$10,000,000 (or its equivalent in any Alternative Currency)
in the aggregate (but excluding Indebtedness arising under
this Agreement) of such Borrower or such subsidiary (as the
case may be), when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure continues after the
applicable grace period, if any, specified in the agreement
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or instrument relating to such Indebtedness; or any other
event occurs or condition exists under any agreement or
instrument relating to any such Indebtedness and continues
after the applicable grace period, if any, specified in such
agreement or instrument expires, if the effect of such event
or condition is to accelerate, or to permit the acceleration
of, the maturity of such Indebtedness; or any such
Indebtedness is declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; or
(e) Any judgment or order for the payment of money in
excess of $10,000,000 (or its equivalent in any Alternative
Currency) is rendered against a Borrower or any of its
Subsidiaries and either (i) enforcement proceedings are
commenced by any creditor upon such judgment or order or
(ii) there exists any period of 10 consecutive days during
which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, is not in effect;
or
(f) Any of the following events occurs which,
individually or in the aggregate, could reasonably be
expected to result in liability which has a Material Adverse
Effect: (i) a member of the Controlled Group fails to pay
when due, after the expiration of any applicable grace
period, any installment payment with respect to its
withdrawal liability under a Multiemployer Plan unless the
obligation to make such payment or the amount thereof is
disputed in good faith by the Controlled Group member and
such member is pursuing in a timely manner its legal right
to object thereto; (ii) a Borrower or an ERISA Affiliate
fails to satisfy its contribution requirements under Section
412(c)(11) of the Code, whether or not it has sought a
waiver under Section 412(d) of the Code; (iii) an ERISA
Event involving the withdrawal by a Borrower or an ERISA
Affiliate from a Plan with respect to which it is a
"substantial employer" (as defined in Section 4001(a)(2) or
Section 4062(e) of ERISA), imposing liability on the
withdrawing employer for its proportionate share of that
Plan's Unfunded Pension Liabilities; (iv) an ERISA Event
involving the complete or partial withdrawal by a Borrower
or an ERISA Affiliate from a Multiemployer Plan, imposing
liability on the withdrawing employer for Withdrawal
Liabilities and the amount of the required annual Withdrawal
Liabilities payment materially exceeds the average annual
amount of contributions to the Multiemployer Plan by the
withdrawing employer for the preceding calendar year or the
average of such contributions for the five preceding
calendar years, whichever is greater; (v) an ERISA Event not
described in clause (iii) or (iv) with respect to a Plan or
Plans, resulting in the imposition of Unfunded Pension
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<PAGE> 46
Liabilities on a Borrower or a Controlled Group member;
(vi) a Plan that is intended to be qualified under Section
401(a) of the Code has been finally determined to have lost
its qualification and all opportunity for appeal or
correction has lapsed; (vii) the commencement or increase of
contributions to, or the adoption of or the amendment of, a
Qualified Plan or a Plan providing for welfare benefits to
retirees of a Borrower or its ERISA Affiliates by a member
of the Controlled Group which results in a net increase in
current unfunded liabilities to the Controlled Group (as
disclosed in the actuarial reports or financial statements
with respect to the Plans previously provided to the
Lenders); (viii) any member of the Controlled Group becomes
liable for a tax under Code Section 4975 in connection with
a non-exempt prohibited transaction; (ix) a violation of
section 404, 405 or 406 of ERISA or the exclusive benefit
rule under section 401(a) of the Code; or (x) any member of
the Controlled Group is assessed a tax under section 4980B
of the Code unless the obligation to pay such tax or the
amount thereof is disputed in good faith by the Controlled
Group member and such member is pursuing in a timely manner
its legal right to object thereto; or
(g) RPM fails in any material respect to perform or
observe any term, covenant or agreement under its guaranty
in Article III; or such guaranty is for any reason partially
(including with respect to future advances) or wholly
revoked or invalidated, or otherwise ceases to be in full
force and effect, or RPM or any other Person contests in any
manner the validity or enforceability thereof or denies that
it has any further liability or obligation thereunder; or
(h) RPM (i) ceases or fails to be solvent, or
generally fails to pay, or admits in writing its inability
to pay, its debts as they become due, subject to applicable
grace periods, if any, whether at stated maturity or
otherwise, (ii) voluntarily ceases to conduct its business
in the ordinary course, (iii) commences any Insolvency
Proceeding with respect to itself; or (iv) takes any action
to effectuate or authorize any of the foregoing; or
(i) One or more of the following occurs: (x) an
involuntary Insolvency Proceeding is commenced or filed
against a Borrower or any Borrower's Subsidiary, or any
writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of a
Borrower or any Borrower's Subsidiaries' properties, and any
such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded
within 60 days after commencement, filing or levy; (y) a
Borrower or any Borrower's Subsidiary admits the material
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<PAGE> 47
allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or
(z) a Borrower or any Borrower's Subsidiary acquiesces in
the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a
substantial portion of its property or business; or
(j) RPM, concurrently with the receipt by any Borrower
of the initial Advance hereunder, fails to satisfy in full
all its obligations to CLCB and CLB pursuant to that certain
$53,000,000 multi-currency revolver dated May 31, 1991 among
RPM, First National Bank of Chicago as agent and certain
other banks as direct participants, including CLCB and CLB.
8.02. REMEDIES. If any Event of Default occurs, the Agent
shall, at the request of, or may, with the consent of, all the
Lenders,
(a) declare the Commitment of the Lenders to make
Advances to be terminated, whereupon such Commitment shall
forthwith be terminated;
(b) declare the unpaid principal amount of all
outstanding Advances, all interest accrued and unpaid
thereon, and all other amounts owing or payable hereunder or
under any other related document to be immediately due and
payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the
Borrowers; and
(c) exercise on behalf of itself and the Lenders all
rights and remedies available to it and the Lenders under
this Agreement or applicable law;
PROVIDED, HOWEVER, that upon the occurrence of any event
specified in paragraph (h) or (i) of Section 8.01 above (in the
case of clause (x) of paragraph (i), upon the expiration of the
60-day period mentioned therein), the obligation of each Lender
to make Advances shall automatically terminate without notice to
the Borrowers and the unpaid principal amount of all outstanding
Advances and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the
Agent or any Lender and without notice to the Borrowers; and
PROVIDED FURTHER, that in any case, the Lenders may, in their
sole and absolute discretion, waive any Event of Default.
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ARTICLE IX
THE AGENT
9.01. AUTHORIZATION AND ACTION. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as
are delegated to the Agent by the terms hereof, together with
such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including,
without limitation, enforcement or collection of the Indebtedness
resulting from the Advances), the Agent shall not be required to
exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of all
the Lenders; PROVIDED, HOWEVER, that the Agent shall not be
required to take any action which exposes the Agent to personal
liability or which is contrary, in the Agent's opinion, to this
Agreement or applicable law. The Agent agrees to give to each
Lender prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
9.02. AGENT'S RELIANCE, ETC. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in
connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Agent: (a) may consult with
legal counsel (including counsel for any Borrower), independent
public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel,
accountants or experts; (b) makes no warranty or representation
to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (c) shall not
have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this
Agreement on the part of any Borrower or to inspect the property
(including the books and records) of the Borrowers; (d) shall not
be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; and (e) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by
telecopier, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
9.03. CLCB AND AFFILIATES. CLCB and its affiliates may
accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with,
the Borrowers, any of their Subsidiaries and any Person who may
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<PAGE> 49
do business with or own securities of any Borrower or any such
Subsidiary, all as if CLCB was not the Agent and without any duty
to account therefor to the Lenders.
9.04. INDEMNIFICATION. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by the Borrowers), ratably
according to the respective aggregate principal amount of
Advances then owing to each of them (or if no such Advances are
at the time outstanding, ratably according to their respective
Allocation Percentages), from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out
of this Agreement or any action taken or omitted by the Agent
under this Agreement, PROVIDED that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its
ratable share (pursuant to its Allocation Percentage) of any
out-of-pocket expenses (including counsel and paralegal fees)
incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the
Agent is not reimbursed for such expenses by the Borrowers.
ARTICLE X
MISCELLANEOUS
10.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by any
Borrower therefrom, shall in any event be effective unless the
same is in writing and signed by all the Lenders, and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
10.02. NOTICES, ETC.
(a) All notices and other communications provided for
hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and mailed,
telecopied, telegraphed, telexed, cabled or delivered, if to
a Borrower, at the address listed beneath its signature on
the signature pages hereof; if to any Lender, at the address
for notices specified beneath its name on the signature
pages hereof; and if to the Agent, at its address for
notices listed beneath its signature on the signature pages
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<PAGE> 50
hereof. Any party hereto may in a written notice to the
other parties change its address or other information
relating to payment. All such notices and communications
shall, when mailed, telecopied, telegraphed, telexed or
cabled, be effective when deposited in the mails,
telecopied, delivered to the telegraph company, confirmed by
telex answerback or delivered to the cable company,
respectively, except that notices and communications to the
Agent pursuant to Article II or IX shall not be effective
until received by the Agent.
(b) The Borrowers acknowledge and agree that any
agreement of the Agent and the Lenders in Article II herein
to receive certain notices by telephone and facsimile is
solely for the convenience and at the request of the
Borrowers. The Agent and the Lenders shall be entitled to
rely on the authority of any Person purporting to be a
Person authorized by RPM (pursuant to the certificate
described in Section 4.01(e) hereof or any written revision
thereto received by the Agent from RPM) to give such notice
and the Agent and the Lenders shall not have any liability
to the Borrowers or any other Person on account of any
action taken or not taken by the Agent or the Lenders in
reliance upon such telephonic or facsimile notice. The
obligation of the Borrowers to repay the Advances shall not
be affected in any way or to any extent by any failure by
the Agent and the Lenders to receive written confirmation of
any telephonic or facsimile notice or the receipt by the
Agent and the Lenders of a confirmation which is at variance
with the terms understood by the Agent and the Lenders to be
contained in the telephonic or facsimile notice.
10.03. NO WAIVER; REMEDIES. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right.
The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
10.04. EXPENSES. The Borrowers shall pay or reimburse each
Lender and the Agent within thirty (30) Business Days after
demand for all costs and expenses incurred by them in connection
with the enforcement, attempted enforcement, or preservation of
any rights or remedies (including in connection with any
"workout" or restructuring regarding the Advances, and including
in any Insolvency Proceeding or appellate proceeding) under this
Agreement or with any investigation, litigation or proceeding
(including any Insolvency Proceeding, Environmental Claim
proceedings or appellate proceeding) related to this Agreement or
the Advances or the use of the proceeds thereof, including all
fees and disbursements of any law firm or other external counsel,
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<PAGE> 51
the allocated cost of internal legal services and all
disbursements of internal counsel incurred by the Agent and any
Lender.
10.05. RIGHT OF SET-OFF. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent specified by
Section 8.02 to authorize the Agent to declare the Advances due
and payable pursuant to the provisions of Section 8.02, each
Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of the
Borrowers against any and all of the obligations of the Borrowers
now or hereafter existing under this Agreement. Each Lender
agrees promptly to notify the Borrowers after any such set-off
and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off
and application. The rights of each Lender under this section
are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender may have.
10.06. JUDGEMENT CURRENCY CONVERSIONS.
(a) If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder in any
currency (the "Original Currency"), into another currency
(the "Other Currency"), the parties hereto agree, to the
fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance
with normal banking procedures Credit Lyonnais Belgium could
purchase the Original Currency with the Other Currency in
Brussels, Belgium on the second Business Day preceding that
on which final judgment is given.
(b) The obligation of any Borrower in respect of any
sum due in the Original Currency from it to any Lender or
the Agent hereunder held by such Lender shall,
notwithstanding any judgment in any Other Currency, be
discharged only to the extent that on the Business Day
following receipt by such Lender or the Agent (as the case
may be) of any sum adjudged to be so due in such Other
Currency, such Lender or the Agent (as the case may be) may
in accordance with normal banking procedures purchase
Dollars with such Other Currency; if the amount of the
Original Currency so purchased is less than the sum
originally due to such Lender or the Agent (as the case may
be) in the Original Currency, the Borrowers agree, as a
separate obligation and notwithstanding any such judgment,
to indemnify such Lender or the Agent (as the case may be)
against such loss, and if the amount of the Original
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<PAGE> 52
Currency so purchased exceeds the sum originally due to any
Lender or the Agent (as the case may be) in the Original
Currency, such Lender or the Agent (as the case may be)
agrees to remit such excess to the Borrower or Borrowers
making the payment.
10.07. BINDING EFFECT. This Agreement shall become
effective when it shall have been executed by the Borrowers and
the Agent and when the Agent has been notified by each Lender
named on the signature pages hereof that such Lender has executed
it and thereafter shall be binding upon and inure to the benefit
of the Borrowers, the Agent and each Lender and their respective
successors and assigns, except that no Borrower shall have the
right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
10.08. PARTICIPATIONS.
(a) Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its
rights and obligations under this Agreement (including,
without limitation, all or a portion of the Advances owing
to it); PROVIDED, HOWEVER, that (i) such Lender's
obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such
obligations, and (iii) the Borrowers, the Agent and the
other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement. The Borrowers agree that
any participant may exercise rights of set-off against
deposits of the Borrowers as if it were a Lender hereunder.
(b) Any Lender may, in connection with any
participation or proposed participation pursuant to this
Section 10.10, disclose to the participant or proposed
participant, any information relating to the Borrowers
furnished to such Lender by or on behalf of any Borrower;
PROVIDED that, prior to any such disclosure, the participant
or proposed participant shall agree to preserve the
confidentiality of any confidential information relating to
the Borrowers received by it from such Lender.
10.09. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
10.10. SEVERABILITY. The illegality or unenforceability of
any provision of this Agreement or any instrument or agreement
required hereunder shall not in any way affect or impair the
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<PAGE> 53
legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
10.11. GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT AND ANY OTHER RELATED DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR OF THE
UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
BORROWERS, THE AGENT AND THE LENDERS CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE BORROWERS, THE
AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING
IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
DOCUMENT RELATED HERETO. THE BORROWERS, THE AGENT AND THE
LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER
MEANS PERMITTED BY ILLINOIS LAW.
10.12. WAIVER OF JURY TRIAL. THE BORROWERS, THE LENDERS
AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
OR RELATED TO THIS AGREEMENT, ANY OTHER RELATED DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT
TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
(The remainder of this page is intentionally left blank)
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<PAGE> 54
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
RPM, INC.
By: /s/ Frank C. Sullivan
-----------------------------
Name: Frank C. Sullivan
Title: Vice President
Address for notices:
RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Mr. Frank C. Sullivan
Vice President and
Chief Financial
Officer
Facsimile: (216) 225-8743
Telephone: (216) 273-8808
With a copy to:
RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Paul A. Granzier, Esq.
Vice President, General
Counsel and Secretary
Facsimile: (216) 225-8743
Telephone: (216) 273-8838
(signatures continued on next page)
<PAGE> 55
RPOW (FRANCE) S.A.
By: /s/ Frank C. Sullivan
--------------------------------
Name: Frank C. Sullivan
Title: _________________
Address for notices:
RPOW (France) S.A.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Mr. Frank C. Sullivan
Vice President and
Chief Financial
Officer
Facsimile: (216) 225-8743
Telephone: (216) 273-8808
With a copy to:
RPOW (France) S.A.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Paul A. Granzier, Esq.
Vice President, General
Counsel and Secretary
Facsimile: (216) 225-8743
Telephone: (216) 273-8838
(signatures continued on next page)
<PAGE> 56
RPM EUROPE B.V.
By: /s/ Frank C. Sullivan
-----------------------------
Name: Frank C. Sullivan
Title:__________________
Address for notices:
RPM Europe B.V.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Mr. Frank C. Sullivan
Vice President and
Chief Financial
Officer
Facsimile: (216) 225-8743
Telephone: (216) 273-8808
With a copy to:
RPM Europe B.V.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Paul A. Granzier, Esq.
Vice President, General
Counsel and Secretary
Facsimile: (216) 225-8743
Telephone: (216) 273-8838
(signatures continued on next page)
<PAGE> 57
RADIANT COLOR N.V.
By: /s/ Frank C. Sullivan
------------------------------
Name: Frank C. Sullivan
Title:__________________
Address for notices:
Radiant Color N.V.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Mr. Frank C. Sullivan
Vice President and
Chief Financial
Officer
Facsimile: (216) 225-8743
Telephone: (216) 273-8808
With a copy to:
Radiant Color N.V.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Paul A. Granzier, Esq.
Vice President, General
Counsel and Secretary
Facsimile: (216) 225-8743
Telephone: (216) 273-8838
(signatures continued on next page)
<PAGE> 58
CREDIT LYONNAIS CHICAGO BRANCH, as
Agent
By: /s/ Mary Ann Klemm
--------------------------------
Name: Mary Ann Klemm
Title: Vice President
Address for notices:
227 West Monroe Street, Suite 3800
Chicago, Illinois 60606
Attention: Mr. Brian Jackson
Facsimile: (312) 641-0527
Telephone: (312) 220-7309
(signatures continued on next page)
<PAGE> 59
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
as a Lender
BY: /s/ Mary Ann Klemm
-------------------------------
Name: Mary Ann Klemm
Title: Authorized Signatory
LENDING OFFICE
Address for notices:
Credit Lyonnais Cayman Island Branch
c/o Credit Lyonnais Chicago Branch
227 West Monroe Street, Suite 3800
Chicago, Illinois 60606
Attention: Mr. Brian Jackson
Facsimile: (312) 641-0527
Telephone: (312) 220-7309
(signatures continued on next page)
<PAGE> 60
CREDIT LYONNAIS BELGIUM, as a Lender
By:_______________________
Name:
Title:
LENDING OFFICE
Address for notices:
Credit Lyonnais Belgium S.A.
17 Marnix Avenue
1050 Brussels, Belgium
Attention: Mr. Thierry Mathieu
Facsimile: (32) 2 5134023
Telephone: (32) 2 5160953
With a copy to:
Credit Lyonnais Belgium S.A.
17 Marnix Avenue
1050 Brussels, Belgium
Attention: Mr. Philippe Mallien
Facsimile: (32) 2 5160940
Telephone: (32) 2 5160617
(last signature page)
<PAGE> 1
EXHIBIT 5.1
February 11, 1994
RPM, Inc.
2628 Pearl Road
Medina, Ohio 44258
In connection with the filing by RPM, Inc., an Ohio
corporation (the "Company"), with the Securities and Exchange Commission under
the provisions of the Securities Act of 1933, as amended, of a Registration
Statement on Form S-3 with respect to 3,560,184 Common Shares, without par
value, of the Company (the "Shares"), to be sold by the selling shareholders
named in the Registration Statement (the "Selling Shareholders"), we have
examined the following: (i) the Amended Articles of Incorporation and Code of
Regulations of the Company, as the same are currently in effect; (ii) the form
of Registration Statement on Form S-3 (including Exhibits thereto) to be filed
with the Securities and Exchange Commission; and (iii) such other documents as
we deemed it necessary to examine as a basis for the opinions hereinafter
expressed.
Based upon the foregoing, we are of the opinion that:
(i) The Company is incorporated and validly existing under the
laws of the State of Ohio.
(ii) The Shares to be sold by the Selling Shareholders in the
manner contemplated by the Registration Statement have been duly authorized and
legally issued, and are fully paid and nonassessable.
We are attorneys licensed to practice law in the State of
Ohio. The opinions expressed herein are limited solely to the laws of the
State of Ohio and we express no opinion under the laws of any other
jurisdiction.
This opinion is delivered to you solely in connection with the
filing of the Registration Statement with respect to the Shares, and this
letter and the opinions stated herein may not be relied upon for any other
purpose or by any person other than the Directors and officers of the Company.
We consent to the filing of this opinion with the Registration
Statement and to the use of our name therein under the caption "Validity of
Shares."
Respectfully submitted,
/s/ Calfee, Halter & Griswold
-------------------------------------
CALFEE, HALTER & GRISWOLD
373/06821VZA.390
<PAGE> 1
Exhibit 23.2
CONSENT OF
INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on Form S-3 of our
report dated July 7, 1993 which appears in the Annual Report on Form 10-K for
the fiscal year ended May 31, 1993 of RPM, Inc. and of our report on the
Financial Statement Schedules which appears in such Annual Report on Form 10-K.
We also consent to the reference to our firm made under the heading "EXPERTS"
in the Prospectus.
/s/ Ciulla Stephens & Co.
---------------------------
CIULLA STEPHENS & CO.
Cleveland, Ohio
February 7, 1994
373/06821WAA.400
<PAGE> 1
Exhibit 23.3
CONSENT OF
INDEPENDENT AUDITORS
We consent to the use of our report dated March 24, 1993 with
respect to the consolidated financial statements of Stonhard, Inc. for the year
ended December 31, 1992 filed with RPM, Inc.'s Current Report on Form 8-K dated
October 26, 1993 and to the incorporation by reference of such report in the
Prospectus constituting part of this Registration Statement on Form S-3. We
also consent to the reference to our firm made under the heading "EXPERTS" in
the Prospectus.
/s/ Haelele, Flanagan & Co.
------------------------------
Haefele, Flanagan & Co.
Moorestown, New Jersey
February 7, 1994
373/06821WZA.233
<PAGE> 1
Exhibit 24.1
RPM, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that RPM, Inc. hereby constitutes and
appoints Thomas C. Sullivan, James A. Karman, Frank C. Sullivan and William A.
Papenbrock, or any one or more of them, its attorneys-in-fact and agents, each
with full power of substitution and resubstitution for it in any and all
capacities to sign any or all amendments or post-effective amendments to this
Registration Statement, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto each of such attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and
necessary in connection with such matters and hereby ratifying and confirming
all that each of such attorneys-in-fact and agents or his substitute or
substitutes may do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed at
Cleveland, Ohio this 3rd day of February, 1994.
RPM, INC.
By: /s/ Thomas C. Sullivan
-------------------------------
Thomas C. Sullivan,
Chairman of the Board and Chief
Executive Officer
373/06821WUA.EXH
<PAGE> 2
Exhibit 24.1
(Continued)
RPM, INC.
CERTIFIED RESOLUTION
I, William A. Papenbrock, Assistant Secretary of RPM, Inc., an Ohio
corporation (the "Corporation"), do hereby certify that the following is a true
copy of a resolution adopted by the Board of Directors on February 3, 1994, and
that the same has not been changed and remains in full force and effect.
"RESOLVED, that each of Thomas C. Sullivan, James A. Karman, Frank C.
Sullivan and William A. Papenbrock is hereby appointed as the attorney of the
Corporation with full power of substitution and resubstitution for and in the
name, place and stead of the Corporation to sign, attest and file a
Registration Statement on Form S-3, or any other appropriate form that the
Corporation may use from time to time, with respect to the issue and sale of up
to 3,560,184 Common Shares (the "Shares") issued in connection with the
Corporation's acquisition of Stonhard, and any and all amendments and Exhibits
to such Registration Statement and any and all applications or other documents
to be filed with the Commission or any and all applications or other documents
to be filed with any governmental or private agency or official relative to the
issuance of said Shares, with full power and authority to do and perform any
and all acts and things whatsoever requisite and necessary to be done in the
premises, hereby ratifying and approving the acts of such attorneys or any such
substitute or substitutes and, without implied limitation, including in the
above the authority to do the foregoing things on behalf of the Corporation in
the name of the person so acting or on behalf and in the name of any duly
authorized officer of the Corporation; and that each of the Chairman of the
Board and Chief Executive Officer, and President and Chief Operating Officer of
the Corporation is hereby authorized, for and on behalf of the Corporation, to
execute a Power of Attorney evidencing the foregoing appointment."
/s/ William A. Papenbrock
------------------------------------------
William A. Papenbrock, Assistant Secretary
Dated: February 3, 1994
373/06821WUA.EXH
