<PAGE> 1
As filed with the Securities and Exchange Commission on October 6, 1995
REGISTRATION NO. 33-61541
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
___________
AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
___________
RPM, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Ohio 2851 34-6550857
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
___________
2628 Pearl Road Thomas C. Sullivan
P.O. Box 777 Chairman and Chief Executive Officer
Medina, Ohio 44258 RPM, Inc.
(216) 273-5090 2628 Pearl Road
(Address, including zip code, and telephone number, P.O. Box 777
including area code, of registrant's principal executive offices) Medina, Ohio 44258
(216) 273-5090
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
</TABLE>
___________
Copies of communications to:
William A. Papenbrock, Esq.
Calfee, Halter & Griswold
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114
(216) 622-8200
___________
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: [ ]
_______________
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.
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<PAGE> 2
<TABLE>
RPM, INC.
CROSS REFERENCE SHEET
Furnished Pursuant to Item 501(b) of Regulation S-K
<CAPTION>
Form S-4 Item Number and Caption Location in Prospectus
-------------------------------- ----------------------
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1. Forepart of Registration Statement and Outside
Front Page of Prospectus . . . . . . . . Forepart of the Registration Statement and Outside
Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages of
Prospectus . . . . . . . . . . . . . . . Inside Front Cover Page and Outside Back Cover
Pages of Prospectus
3. Risk Factors and Ratio of Earnings to Fixed
Charges, and Other Information . . . . . Prospectus Summary; The Company; Risk Factors
4. Terms of the Transaction . . . . . . . . . . Prospectus Summary; The Exchange Offer; Certain
Federal Income Tax Consequences; Description
of Notes
5. Pro Forma Financial Information . . . . . . Prospectus Summary; Selected Financial Data
6. Material Contracts with the Company Being
Acquired . . . . . . . . . . . . . . . . *
7. Additional Information Required for Reoffering
by Persons and Parties Deemed to be
Underwriters . . . . . . . . . . . . . . *
8. Interests of Named Expert and Counsel . . . Legal Matters; Independent Public Accountants
9. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities . . . . . . . . . . . . . . *
10. Information with Respect to S-3 Registrants *
11. Incorporation of Certain Information by
Reference . . . . . . . . . . . . . . . Incorporation of Certain Documents by Reference
12. Information with Respect to S-2 or S-3
Registrants . . . . . . . . . . . . . . *
13. Incorporation of Certain Information by
Reference . . . . . . . . . . . . . . . *
14. Information with Respect to Registrants Other
than S-3 or S-2 Registrants . . . . . . *
15. Information with Respect to S-3 Companies . *
16. Information with Respect to S-2 or S-3
Companies . . . . . . . . . . . . . . . *
17. Information with Respect to Companies Other
than S-2 or S-3 Companies . . . . . . . *
18. Information if Proxies, Consents or
Authorizations are to be Solicited . . . *
19. Information if Proxies, Consents or
Authorizations are not to be Solicited or
in an Exchange Offer . . . . . . . . . . Incorporated by reference to the Registrant's
Annual Report on Form 10-K for the fiscal year
ended May 31, 1995
<FN>
_________________
*Not applicable or answer thereto is negative.
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***************************************************************************
* *
* 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> 4
Subject to Completion, Dated October 6, 1995
OFFER TO EXCHANGE -- PROSPECTUS
RPM, INC. LOGO
Offer to Exchange
its
7.0% Senior Notes Due 2005
($150,000,000 principal amount outstanding)
for 7.0% Senior Exchange Notes Due 2005
($150,000,000 principal amount)
____________
The Exchange Offer and withdrawal rights will expire at 5:00 P.M., New
York City time, on November 10, 1995, unless extended.
____________
RPM, Inc., an Ohio corporation (the "Company" or "RPM"), hereby
offers, upon the terms and subject to the conditions set forth in this Offer to
Exchange -- Prospectus (the "Prospectus") and the accompanying Letter of
Transmittal (which together constitute the "Exchange Offer"), to exchange its
7.0% Senior Exchange Notes Due 2005 (the "New Notes") for an equal principal
amount of its outstanding 7.0% Senior Notes Due 2005 (the "Old Notes"), of
which $150,000,000 principal amount is outstanding as of the date hereof. The
Old Notes and New Notes are collectively referred to herein as the "Notes."
The form and terms of the New Notes are the same as the form and terms of the
Old Notes except that (i) the Company's offer and exchange of the New Notes
will have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), and, therefore, the New Notes will not bear legends
restricting their transfer and (ii) holders of New Notes will not be entitled
to certain rights under the Registration Rights Agreement (as hereinafter
defined), which rights will terminate when the Exchange Offer is consummated.
The New Notes will evidence the same debt as the Old Notes (which they replace)
and will be issued under and be entitled to the benefits of the indenture
governing the Old Notes, dated as of June 1, 1995 (the "Indenture"). See "The
Exchange Offer" and "Description of Notes."
The Company will accept for exchange any and all validly tendered Old
Notes on or prior to 5:00 p.m. New York City time, on November 10, 1995 (if and
as extended, the "Expiration Date"). Tenders of Old Notes may be withdrawn at
any time prior to 5:00 p.m., New York City time, on the Expiration Date. The
Exchange Offer is not conditioned upon any minimum principal amount of Old
Notes being tendered for exchange. Old Notes may be tendered only in integral
multiples of $1,000.
____________
SEE "RISK FACTORS" ON PAGE 18 FOR A DISCUSSION OF CERTAIN FACTORS
WHICH INVESTORS SHOULD CONSIDER IN CONNECTION WITH THE EXCHANGE OFFER AND AN
INVESTMENT IN THE NEW NOTES.
(continued on following page)
<PAGE> 5
____________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
____________
The date of this Offer to Exchange -- Prospectus is ______________, 1995.
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<PAGE> 6
The Old Notes were sold by the Company on June 20, 1995 to Chase
Securities, Inc. and Bear, Stearns & Co. Inc. (the "Initial Purchasers") in a
transaction exempt from registration under the Securities Act. The Initial
Purchasers subsequently placed the Old Notes with qualified institutional
buyers in reliance upon Rule 144A under the Securities Act or with
institutional accredited buyers within the meaning of subparagraph (a)(1), (2),
(3) or (7) of Rule 501 under the Securities Act. Accordingly, the Old Notes
may not be reoffered, resold or otherwise transferred in the United States
unless so registered or unless an applicable exemption from the registration
requirements of the Securities Act is available. The New Notes are being
offered hereunder in order to satisfy the obligations of the Company under the
Registration Rights Agreement. See "The Exchange Offer--Purpose and Effect of
the Exchange Offer."
Based on certain interpretive letters issued by the Staff of the
Division of Corporation Finance of the Securities and Exchange Commission (the
"Commission") to third parties, the Company believes that the New Notes issued
pursuant to the Exchange Offer may be offered for resale, resold and otherwise
transferred by any holder thereof (other than (i) a broker-dealer who acquired
Old Notes directly from the Company for resale pursuant to Rule 144A or any
other available exemption under the Securities Act or (ii) a person who is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act) without further compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such New Notes are acquired in
the ordinary course of such holder's business and such holder has no
arrangement or understanding with any person to participate in the distribution
of such New Notes. Holders of Old Notes wishing to accept the Exchange Offer
must represent to the Company that such conditions have been met.
Each broker-dealer that receives New Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of New Notes received in exchange for Old Notes where such Old
Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed that it will
make this Prospectus available to any broker-dealer for use in connection with
any such resale. See "Plan of Distribution."
As of the Record Date (as hereinafter defined), there were two
registered holders of the Old Notes and Cede & Co., as nominee for The
Depository Trust Company, New York, New York ("DTC"). DTC held Old Notes for
certain of its participants. The Company believes that no such holder is an
affiliate (as such term is defined in Rule 405 under the Securities Act) of the
Company. There previously has been only a limited secondary market and no
public market for the Old Notes. The Old Notes are eligible for trading in the
Private Offering, Resales and Trading through Automatic Linkages ("PORTAL")
market. The Company does not intend to list the New Notes on any securities
exchange or to seek approval for quotation through any automated quotation
system. Therefore, there can be no assurance that an active market for the
3
<PAGE> 7
New Notes will develop. If such a trading market develops for the New Notes,
future trading prices will depend on many factors, including, among other
things, prevailing interest rates, the Company's results of operations and the
market for similar securities. Depending on such factors, the New Notes may
trade at a discount from their face value. See "Risk Factors--Lack of Public
Market for New Notes."
The Company will not receive any proceeds from this offering, but,
pursuant to the Registration Rights Agreement, the Company will bear certain
offering expenses. No underwriter is being utilized in connection with the
Exchange Offer.
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE COMPANY ACCEPT
SURRENDERS FOR EXCHANGE FROM, HOLDERS OF OLD NOTES IN ANY JURISDICTION IN WHICH
THE EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH
THE SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
Holders of Old Notes whose Old Notes are not tendered and accepted in
the Exchange Offer will continue to hold such Old Notes and will be entitled to
all the rights and preferences and will be subject to the limitations
applicable thereto under the Indenture, and with respect to transfer, under the
Securities Act. To the extent that Old Notes are tendered and accepted in the
Exchange Offer, the trading market for untendered and tendered but unaccepted
Old Notes could be adversely affected.
The New Notes will be available initially only in book-entry form.
The Company expects that the New Notes issued pursuant to this Exchange Offer
will be issued in the form of one or more fully registered global notes, which
will be deposited with, or on behalf of, DTC and registered in the its name or
in the name of Cede & Co., its nominee. Beneficial interests in the global
notes representing the New Notes will be shown on, and transfers thereof will
be effected only through, records maintained by DTC and its participants.
After the initial issuance of each global note, New Notes in certificated form
will be issued in exchange for the global note only as set forth in the
Indenture. See "Description of Notes--Book-Entry, Delivery and Form."
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, proxy statements and other information with
the Commission. Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street N.W., Washington D.C. 20549;
Seven World Trade Center, 13th Floor, New York, New York 10007; and 500 West
Madison Street, Chicago, Illinois 60661. Copies of such material can be
obtained at prescribed rates from the Public Reference Section of the
Commission, 450 Fifth Street N.W., Washington, D.C. 20549.
4
<PAGE> 8
The Company has filed with the Commission a Registration Statement on
Form S-4 (herein, together with all amendments thereto, referred to as the
"Registration Statement") under the Securities Act. This Prospectus does not
contain all of the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the
Commission and are incorporated herein by reference: (i) the Company's Annual
Report on Form 10-K for the fiscal year ended May 31, 1995; and (ii) the
Company's Current Report on Form 8-K dated July 24, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the Exchange Offer shall be deemed to be incorporated in
this Prospectus by reference and to be a part hereof from the date of filing of
such documents. Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus has been delivered, on the written or oral request of such
person, a copy of any or all of the documents which have been or may be
incorporated in this Prospectus by reference (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference in
any such documents) and a copy of any or all other contracts or documents which
are referred to herein. Requests for such copies should be directed to RPM,
Inc., P.O. Box 777, 2628 Pearl Road, Medina, Ohio 44258, Attn: Paul A.
Granzier, Vice President, General Counsel and Secretary, telephone (216)
273-5090.
5
<PAGE> 9
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more
detailed information and financial statements, including the notes thereto,
appearing elsewhere in this Prospectus. Unless the context otherwise requires,
the terms "Company" and "RPM" as used in this Prospectus refer to RPM, Inc. and
its subsidiaries. Investors should carefully consider the information set
forth under the heading "Risk Factors."
THE COMPANY
General. RPM operates principally in one business segment, the
manufacture and marketing of protective coatings. These protective coatings
products are used for both industrial and consumer applications. For
industrial applications, RPM manufactures and markets coatings for
waterproofing and general maintenance, corrosion control and other specialty
chemical applications. For consumer applications, RPM manufactures
do-it-yourself products for the home maintenance, automotive repair, and
consumer hobby and leisure markets. RPM's consumer brands, such as Testors,
Rust-Oleum, Bondo, Wolman, Bondex and Zinsser are long-established household
names.
RPM, through its operating companies, serves niche markets within
these broader categories, thus providing a foundation for its strategy of
growth through product line extensions. RPM markets its products in
approximately 110 countries and operates manufacturing facilities in 45
locations in the United States, Belgium, Canada, Luxembourg and The
Netherlands.
The Company's executive offices are located at 2628 Pearl Road, P.O.
Box 777, Medina, Ohio 44258 and its telephone number is (216) 273-5090.
Acquisition of Narragansett/DSI Acquisition Co., Inc. On September
21, 1995, the Company acquired Narragansett/DSI Acquisition Co., Inc., a
Delaware corporation ("NDSI"), through the merger (the "Merger") of the
Company's wholly owned subsidiary, RPM of Delaware, Inc., a Delaware
corporation, with and into NDSI, whereby NDSI became a wholly owned subsidiary
of the Company. For further information regarding the Company's acquisition of
NDSI, see the Company's Current Report on Form 8-K dated July 24, 1995, which
is incorporated herein by reference.
NDSI is a non-operating holding company with one direct wholly owned
operating subsidiary, Dryvit Systems, Inc., a Rhode Island corporation
("Dryvit"). Dryvit manufactures, distributes and markets insulated, exterior
wall materials which are used in both new and retrofit construction.
6
<PAGE> 10
<TABLE>
<CAPTION>
TERMS OF THE EXCHANGE OFFER
<S> <C>
7.0% Senior Notes Due 2005 . . . . . . . . . . . . The Old Notes were sold by the Company on June 20, 1995 (the "Issue
Date" or "Closing Date"), pursuant to a Purchase Agreement, dated as of
June 15, 1995 (the "Purchase Agreement"), by and among the Company, and
Chase Securities, Inc. and Bear, Stearns & Co. Inc., the initial
purchasers of the Old Notes (the "Initial Purchasers").
Registration Rights . . . . . . . . . . . . . . . . Pursuant to the Purchase Agreement, the Company and the Initial
Purchasers entered into a Registration Rights Agreement, dated as of
June 20, 1995 (the "Registration Rights Agreement"), which grants the
holders of the Old Notes certain exchange and registration rights. This
Exchange Offer is intended to satisfy such exchange rights which
terminate upon consummation of the Exchange Offer.
The Exchange Offer . . . . . . . . . . . . . . . . The Company is offering to exchange $1,000 principal amount of its New
Notes for each $1,000 principal amount of its outstanding Old Notes that
are properly tendered and accepted. As of the date of this Prospectus
$150,000,000 in aggregate principal amount of the Old Notes are
outstanding. As of the Record Date, there were two registered holders
of Old Notes.
Based on the position of the Staff of the Division of Corporation
Finance of the Commission set forth in certain interpretive letters
addressed to third parties, the Company believes that New Notes issued
pursuant to the Exchange Offer in exchange for Old Notes may be offered
for resale, resold and otherwise transferred by any holder thereof
(other than (i) a broker-dealer who acquired Old Notes directly from the
Company for resale pursuant to Rule 144A or any other available
exemption under the Securities Act or (ii) any person who is an
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7
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<S> <C>
"affiliate" of the Company within the meaning of Rule 405 under the
Securities Act) without further compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that such New
Notes are acquired in the ordinary course of such holder's business and that
such holder does not intend to participate and has no arrangement or
understanding with any person to participate in the distribution of such New
Notes.
Each broker-dealer that receives New Notes for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. The Letter of Transmittal that
accompanies this Prospectus (the "Letter of Transmittal") states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of
New Notes received in exchange for Old Notes where such Old Notes were
acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that it will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See "Plan of Distribution."
Any holder of Old Notes who tenders in the Exchange Offer with the intention
to participate, or for the purpose of participating, in a distribution of the
New Notes could not rely on the position of the Staff of the Division of
Corporation Finance of the Commission enunciated in interpretive letters
addressed to third parties and in the absence of an exemption therefrom, must
comply with the registration and prospectus
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delivery requirements of the Securities Act in connection with any
resale transaction. Failure to comply with such requirements in such
instance may result in such holder incurring liability under the
Securities Act for which the holder is not indemnified by the Company.
Expiration Date . . . . . . . . . . . . . . . . . . 5:00 p.m., New York City time, on November 10, 1995. See "The Exchange
Offer--Terms of the Exchange Offer, Expiration Date; Termination."
Accrued Interest on the
New Notes and Old Notes . . . . . . . . . . . . . . The New Notes will bear interest from their respective issuance dates at
the same rate and upon the same terms as the Old Notes. Holders whose
Old Notes are accepted for exchange will receive accrued and unpaid
interest thereon to, but not including, the issuance date of the New
Notes and will be deemed to have waived the right to receive any payment
in respect of interest on the Old Notes accrued from and after the date
of issuance of the New Notes. Accrued but unpaid interest on the Old
Notes will be payable with the first interest payment on the New Notes.
Procedures for Tendering
Old Notes . . . . . . . . . . . . . . . . . . . . . Each holder of Old Notes desiring to accept the Exchange Offer must
complete and sign the Letter of Transmittal or a facsimile thereof, in
accordance with the instructions contained herein and therein, and mail
or deliver the Letter of Transmittal, together with the Old Note and
any other required documents to the Exchange Agent (as hereinafter
defined) at the address set forth herein and in the Letter of
Transmittal on or prior to the Expiration Date. By executing the Letter
of Transmittal, each holder will represent to the Company that, among
other things, the New Notes acquired pursuant to the Exchange Offer are
being obtained in the
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<S> <C>
ordinary course of business of the person receiving such New Notes,
whether or not such person is the holder, that neither the holder nor
any such other person has any arrangement or understanding with any
person to participate in the distribution of such New Notes and that
neither the holder nor any such other person is an "affiliate," as
defined under Rule 405 of the Securities Act.
Untendered Old Notes . . . . . . . . . . . . . . . Following the consummation of the Exchange Offer, holders of Old Notes
eligible to participate but who do not tender their Old Notes will not
have any further registration rights and such Old Notes will continue to
be subject to certain restrictions on transfer. Accordingly, the
liquidity of the market for such Old Notes could be adversely affected.
Shelf Registration Statement . . . . . . . . . . . (i) If, because of any change in law or applicable interpretations
thereof by the Division of Corporation Finance of the Staff of the
Commission, the Company is not permitted to effect the Exchange Offer,
(ii) if the Exchange Offer Registration Statement (as hereinafter
defined) is not declared effective by October 19, 1995, or (iii) upon
the request of either Initial Purchaser following the consummation of the
Exchange Offer (with respect to any Old Notes which were acquired
directly from the Company), to the extent such Initial Purchaser is not
eligible under applicable securities laws to participate in the Exchange
Offer and in each such case such holder has satisfied certain conditions
relating to the provision of information to the Company for use therein,
the Company has agreed to register resales of the Old Notes on a shelf
registration statement (the "Shelf Registration Statement") and use its
best efforts to cause it to be declared effective by the Commission as
promptly as practicable. The Company
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has agreed to maintain the effectiveness of the Shelf Registration
Statement for a period of three (3) years to cover resales of the Old
Notes held by any such holders.
Special Procedures for
Beneficial Owners . . . . . . . . . . . . . . . . . Any beneficial owner whose Old Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who
wishes to tender should contact such registered holder promptly and
instruct such registered holder to tender on such beneficial owner's
behalf. If such beneficial owner wishes to tender on such owner's own
behalf, such owner must, prior to completing and executing the Letter of
Transmittal and delivering its Old Notes, either make appropriate
arrangements to register ownership of the Old Notes in such owner's name
or obtain a properly completed bond power from the registered holder.
The transfer of registered ownership may take considerable time.
Guaranteed Delivery Procedures . . . . . . . . . . Holders of Old Notes who wish to tender their Old Notes and (i) whose
Old Notes are not immediately available or (ii) who cannot deliver their
Old Notes, the Letter of Transmittal and any other documents required by
the Letter of Transmittal to the Exchange Agent (or comply with the
procedures for book-entry transfers) prior to the Expiration Date, must
tender their Old Notes according to the guaranteed delivery procedures
set forth in "The Exchange Offer--Guaranteed Delivery Procedures."
Withdrawal of Tenders . . . . . . . . . . . . . . . Tenders of Old Notes may be withdrawn at any time prior to 5:00 p.m.,
New York City time, on the Expiration Date.
Acceptance of Old Notes and
Delivery of New Notes . . . . . . . . . . . . . . . Subject to the satisfaction or waiver of all conditions of the Exchange
Offer, the Company will accept for exchange any and
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<TABLE>
<S> <C>
all Old Notes that are properly tendered in the Exchange Offer prior to
5:00 p.m., New York City time, on the Expiration Date. The New Notes
issued pursuant to the Exchange Offer will be delivered in exchange for
the applicable Old Notes accepted in the Exchange Offer promptly
following the Expiration Date. See "The Exchange Offer--Acceptance of
Old Notes for Exchange; Delivery of New Notes."
Certain Federal Income Tax
Consequences . . . . . . . . . . . . . . . . . . . For a discussion of certain federal income tax consequences of the
exchange of the Old Notes, see "Certain Federal Income Tax Consequences."
Exchange Agent . . . . . . . . . . . . . . . . . . The First National Bank of Chicago is the exchange agent (the "Exchange
Agent"). The address and telephone number of the Exchange Agent are set
forth in "The Exchange Offer--Exchange Agent."
DESCRIPTION OF THE NEW NOTES
The Exchange Offer applies to $150,000,000 aggregate principal amount of the Old Notes. The form and terms of the New Notes
are the same as the form and terms of the Old Notes except that (i) the offer and exchange of the New Notes will have been
registered under the Securities Act and, therefore, the New Notes will not bear legends restricting the transfer thereof and (ii)
holders of the New Notes will not be entitled to certain rights of holders of Old Notes under the Registration Rights Agreement
which will terminate upon consummation of the Exchange Offer. New Notes will evidence the same indebtedness as the Old Notes (which
they replace) and will be issued under, and be entitled to the benefits of, the Indenture governing the Old Notes. See "Description
of Notes."
Securities Offered . . . . . . . . . . . . . . . . $150,000,000 aggregate principal amount of 7.0% Senior Exchange Notes
due 2005.
Maturity . . . . . . . . . . . . . . . . . . . . . June 15, 2005
Payment of Interest . . . . . . . . . . . . . . . . June 15 and December 15, commencing December 15, 1995.
</TABLE>
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<TABLE>
<S> <C>
Denominations . . . . . . . . . . . . . . . . . . . The New Notes will be issued in minimum denominations of $1,000 and
integral multiples of $1,000 in excess thereof.
Redemption . . . . . . . . . . . . . . . . . . . . The Notes are not redeemable prior to maturity.
Ranking . . . . . . . . . . . . . . . . . . . . . . The Notes will be general unsecured obligations of the Company. The
Notes will rank on a parity in right of payment with all existing and
future unsubordinated unsecured indebtedness of the Company for borrowed
money (approximately $414 million at June 20, 1995).
Covenants . . . . . . . . . . . . . . . . . . . . . The Indenture contains certain covenants that, among other things,
limit the ability of the Company and its subsidiaries to create certain
liens upon its Principal Properties (as hereinafter defined) or upon any
Equity Interests (as hereinafter defined) of any subsidiary or engage in
certain sale and leaseback transactions. See "Description of Notes."
Events of Default . . . . . . . . . . . . . . . . . The Indenture provides that the occurrence of one of a number of certain
events will constitute an "Event of Default" under the Indenture and may
cause the principal and accrued interest on the New Notes to be due and
payable immediately. See "Description of Notes."
</TABLE>
NO PROTECTION IN EVENT OF CREDIT DECLINE
The provisions of the Indenture do not afford the holders of Notes
protection (whether in the form of a repurchase right or otherwise) in the
event of the decline in the Company's credit quality resulting from a highly
leveraged transaction, reorganization, restructuring, merger or other similar
transaction that may adversely affect the holders of the Notes.
RISK FACTORS
Investors in the Notes should carefully consider the specific factors
set forth under "Risk Factors" as well as the other information and data
included elsewhere in this Prospectus.
13
<PAGE> 17
SUMMARY FINANCIAL DATA (1) (4)
The summary historical consolidated financial data for the five years
in the period ended May 31, 1995 set forth below are principally derived from
and should be read in conjunction with, the related audited consolidated
financial statements and accompanying notes included in the Company's Annual
Report on Form 10-K for the fiscal year ended May 31, 1995.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED MAY 31,
----------------------------------------------------------------------------
1995 1995
1991 1992 1993 1994 (ACTUAL) PRO FORMA(2)
------ ------ ------ ---- -------- ------------
(IN THOUSANDS EXCEPT PER SHARE AND RATIO DATA)
<S> <C> <C> <C> <C> <C> <C>
Income Statement Data:
Net sales . . . . . $619,613 $680,091 $768,372 $815,598 $1,016,954 $1,034,043
Net income . . . . 37,435 38,481 39,498 52,640 61,099 62,349
Primary earnings per
share . . . . . . 0.72 0.73 0.74 0.93 1.07 1.09
Fully diluted earnings
per share . . . . 0.71 0.72 0.72 0.89 1.01 1.03
Other Data:
Cash dividends per
share . . . . . . 0.399 0.442 0.473 0.510 0.550 0.550
Ratio of earnings to
fixed charges (3) 4.54 4.12 4.08 6.21 4.83 4.80
Balance Sheet Data:
Working capital . . $142,581 $205,419 $191,872 $226,994 $270,226 $270,226
Total assets . . . 457,779 623,346 648,524 660,838 959,140 959,140
Short-term debt . . 21,441 7,763 21,262 1,196 643 643
Long-term debt . . 130,800 273,871 258,712 233,039 406,375 406,375
Shareholders' equity 215,471 233,360 243,899 314,476 347,591 347,591
<FN>
___________________
(1) All information presented includes the fiscal 1994 acquisitions of
Dynatron/Bondo Corporation and Stonhard, Inc. accounted for on a
pooling-of-interests basis.
(2) On June 28, 1994, the Company acquired Rust-Oleum Corporation
("Rust-Oleum"). The pro forma data reflect the combined results of
operations of the Company and Rust Oleum for the fiscal year ended May
31, 1995. The pro forma Income Statement Data and Other Data are
shown as if the acquisition had occurred on June 1, 1994. The pro
forma amounts give effect to appropriate adjustments resulting from
the combination, but are not necessarily indicative of future results
of operations or of what results would have been for the combined
companies.
(3) For purposes of the ratio of earnings to fixed charges, earnings
consist of income from operations before income taxes and fixed
charges. Fixed charges include interest and debt expense and
one-third of rents which is deemed representative of an interest
factor.
(4) As described under the caption "Acquisition of Narragansett/DSI
Acquisition Co., Inc. and its Wholly Owned Subsidiary Dryvit Systems,
Inc.," on July 24, 1995 the Company entered into the Merger Agreement
with NDSI and its securityholders pursuant to which the Company will
acquire NDSI. The pro forma data set forth in this footnote reflect
the combined results of operations of the Company and NDSI for the
fiscal year ended May 31, 1995. The pro forma amounts give effect to
appropriate adjustments resulting from the combination, but are not
necessarily indicative of future results of operations or of what
results would have been for the combined companies.
</TABLE>
<TABLE>
<CAPTION>
Fiscal Year Ended
May 31, 1995
-----------------
(In thousands, except per share data)
<S> <C>
Net sales $1,085,043
Net income 62,266
Primary earnings per share 1.03
Fully diluted earnings per share 0.98
</TABLE>
14
<PAGE> 18
ACQUISITION OF NARRAGANSETT/DSI ACQUISITION CO., INC.
AND ITS WHOLLY OWNED SUBSIDIARY DRYVIT SYSTEMS, INC.
On September 21, 1995 the Company acquired all of the issued and
outstanding securities of NDSI and its wholly owned operating subsidiary,
Dryvit, for $47 million in cash, of which approximately $14.5 million will be
used to repay indebtedness of NDSI, and the issuance of 3,200,000 Common
Shares.
NDSI is a non-operating holding company with one wholly owned
subsidiary, Dryvit. Dryvit manufactures, distributes and markets insulated,
exterior wall materials which are used in both new and retrofit construction.
For further information regarding NDSI and Dryvit, see the Company's Current
Report on Form 8-K dated July 24, 1995, which is incorporated herein by
reference.
THE COMPANY
RPM was organized in 1947 as an Ohio corporation under the name
Republic Powdered Metals, Inc. On November 9, 1971, the Company's name was
changed to RPM, Inc. As used herein, the terms "RPM" and the "Company" refer
to RPM, Inc. and its subsidiaries, unless the context indicates otherwise. The
Company has its principal executive offices at 2628 Pearl Road, P.O. Box 777,
Medina, Ohio 44258, and its telephone number is (216) 273-5090.
BUSINESS
RPM operates principally in one business segment, the manufacture and
marketing of protective coatings. These protective coatings products are used
for both industrial and consumer applications. For industrial applications,
RPM manufactures and markets coatings for waterproofing and general
maintenance, corrosion control and other specialty chemical applications. For
consumer applications, RPM manufactures do-it-yourself products for the home
maintenance, automotive repair, and consumer hobby and leisure markets. RPM's
consumer brands, such as Testors, Rust-Oleum, Bondo, Wolman, Bondex and Zinsser
are long-established household names.
RPM, through its operating companies, serves niche markets within
these broader categories, thus providing a foundation for its strategy of
growth through product line extensions. RPM markets its products in
approximately 110 countries and operates manufacturing facilities in 45
locations in the United States, Belgium, Canada, Luxembourg and The
Netherlands.
15
<PAGE> 19
INDUSTRIAL MARKETS AND PRODUCTS
WATERPROOFING AND GENERAL MAINTENANCE. Waterproofing and general
maintenance constitute RPM's original marketplace, having been served by
Republic Powdered Metals, Inc. since the Company's founding. Operating
companies and products include: REPUBLIC POWDERED METALS - heavy-duty
protective coatings and single-ply roofing systems; RUST-OLEUM NETHERLANDS B.V.
- - coatings for industrial routine maintenance; MAMECO INTERNATIONAL -
sealants, deck coatings and membranes; MARTIN MATHYS - water-based coatings for
commercial and industrial maintenance; and STONHARD - high-performance polymer
floors, linings and wall systems.
CORROSION CONTROL. RPM's CARBOLINE manufactures high-performance
corrosion-resistant protective coatings, fireproofing, tank linings and floor
coatings, and markets these products to industrial, architectural and
applicator companies throughout the world. WISCONSIN PROTECTIVE COATINGS
manufactures a complete line of liquid-applied, corrosion-resistant coatings
used for extremely harsh environments, such as rail cars, tank linings and
smoke stacks.
SPECIALTY CHEMICALS. RPM's specialty chemicals businesses address
selected niche markets within this broad industry category. Specialty chemical
companies and products include: DAY-GLO COLOR - fluorescent colorants and
pigments; MOHAWK FINISHING PRODUCTS - furniture repair, cleaning and polishing
products; ALOX - chemical additives used as rust preventatives, corrosion
inhibitors, special lubricants and metal working compounds; CHEMICAL
SPECIALTIES - chemicals used for cleaning carpet, upholstery and fabric wall
covering, and chemicals used in smoke and fire restoration clean-up; and
AMERICAN EMULSIONS - dye additives for textile dyeing and finishing, and water
treatment products for the paper industry.
CONSUMER MARKETS AND PRODUCTS
CONSUMER HOBBY AND LEISURE. The hobby and leisure marketplace is
served by TESTOR, America's largest producer and marketer of model paints and
accessory items to the hobby and model market, CRAFT HOUSE, producer of
paint-by-numbers sets, basic preschool activity sets, crafts and hobby
products, and FLOQUIL/POLY S COLOR, manufacturer of hobby, art and craft
coatings. RPM's consumer hobby and leisure products are marketed through
thousands of mass merchandise, toy and hobby stores throughout North America.
CONSUMER DO-IT-YOURSELF. RPM's six primary consumer do-it-yourself
businesses are RUST-OLEUM, WM. ZINSSER, KOP-COAT, BONDEX INTERNATIONAL,
DYNATRON/BONDO and TALSOL. RUST-OLEUM manufactures high-quality
corrosion-resistant coatings for the household maintenance and light industrial
markets. WM. ZINSSER is the nation's leading producer of shellac items used as
pharmaceutical glazes, confectioner's glazes, citrus fruit coatings and wood
coatings, including a broad line of specialty primers and
16
<PAGE> 20
sealers. KOP-COAT manufactures pleasure marine coatings and compounds and
manufactures wood treatment products. BONDEX INTERNATIONAL produces a
nationwide line of household patch and repair products, in addition to basement
waterproofing products. DYNATRON/BONDO manufactures auto and marine body
filler and related products. TALSOL manufactures automotive paints and
coatings. Other consumer do-it-yourself products include fabrics, window
treatments and wall coverings sold by DESIGN/CRAFT FABRIC and RICHARD E.
THIBAUT. RPM's consumer do-it-yourself products are marketed through thousands
of mass merchandise, home center and hardware stores throughout North America.
PATENTS, TRADEMARKS AND LICENSES
No single patent, trademark (other than the registered trademarks
Day-Glo(R), Rust-Oleum(R) and Carboline(R), which are material), name or
license, or group of these rights, is material to the Company's business.
Day-Glo Color Corp., a subsidiary of the Company, is the owner of over
50 trademark registrations of the mark and name "DAY-GLO" in numerous countries
and the United States for a variety of fluorescent products. There are also
many other foreign and domestic registrations for other trademarks of the
Day-Glo Color Corp., for a total of over 100 registrations. These
registrations are valid for a variety of terms ranging from one year to twenty
years, which terms are renewable as long as the marks continue to be used.
Many of these registrations are renewed on a regular basis.
Rust-Oleum Corporation, a subsidiary of the Company, is the owner of
over 50 United States trademark registrations for the mark and name
"RUST-OLEUM" and other trademarks covering a variety of rust-preventative
coatings sold by Rust-Oleum Corporation. There are also many foreign
registrations for "RUST-OLEUM" and the other trademarks of Rust-Oleum
Corporation, for a total of nearly 400 registrations. These registrations are
valid for a variety of terms ranging from one year to twenty years, which terms
are renewable for as long as the marks continue to be used. Many of these
registrations are renewed on a regular basis.
ACQUISITION STRATEGY
Since RPM's offering of Common Shares to the public in September 1969,
the Company has made a number of significant acquisitions that have been
described in previous reports on file with the Commission. For a description
of RPM's currently pending acquisition of NDSI see "Acquisition of
Narragansett/DSI Acquisition Co., Inc. and its Wholly Owned Subsidiary Dryvit
Systems, Inc." RPM's acquisition strategy focuses on companies with high
performance and quality products which are leaders in their respective markets.
RPM expects to continue its acquisition program, although there is no assurance
that any additional acquisitions will be made.
17
<PAGE> 21
RISK FACTORS
Investors in the Notes should carefully consider the following risk
factors in addition to the other information contained in this Prospectus.
CONSEQUENCES OF FAILURE TO EXCHANGE
The untendered Old Notes of holders who do not exchange such Old Notes
pursuant to the Exchange Offer will remain restricted securities. Such Old
Notes will continue to be subject to the restrictions on transfer, as set forth
in the Confidential Offering Memorandum, dated June 15, 1995, pursuant to which
the Old Notes were originally purchased; if in the future a holder of Old Notes
decides to resell, pledge or otherwise transfer the Old Notes, such Old Notes
may be resold, pledged or transferred only (i) to the Company (upon redemption
or otherwise), (ii) so long as such security is eligible for resale pursuant to
Rule 144A, to a person whom the seller reasonably believes is a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, (iii) in an offshore
transaction in accordance with Regulation S, but only in the case of a transfer
that is effected by the delivery of the transferee of securities registered in
its name (or its nominee's name) in the books maintained by the registrar for
the Notes, (iv) pursuant to an exemption from registration under the Securities
Act provided by Rule 144 (if available) or Rule 145 under the Securities Act,
(v) in reliance on another exemption from the registration requirements of the
Securities Act but only in the case of a transfer that is effected by the
delivery to the transferee of securities registered in its name (or its
nominee's name) in the books maintained by the registrar for the Old Notes and
subject to the receipt by the registrar or co-registrar of a certification of
the transferor and an opinion satisfactory to counsel to the Company to the
effect that such transfer is in compliance with the Securities Act or (vi)
pursuant to an effective registration statement under the Securities Act, in
each case in accordance with any applicable securities laws of any state of the
United States.
The Old Notes provide that, if the Exchange Offer is not consummated
by November 17, 1995, the interest rate borne by the Old Notes will increase by
.50% per annum following November 17, 1995 until the Exchange Offer is
consummated. See "Description of Old Notes." Following consummation of the
Exchange Offer, the Old Notes will not be entitled to any increase in the
interest rate thereon. The New Notes will not be entitled to any such increase
in the interest rate thereon.
ABSENCE OF PUBLIC MARKET
The Old Notes are currently owned by a relatively small number of
beneficial owners. The Company believes that none of such holders is an
affiliate (as defined in Rule 405 under the Securities Act) of the Company.
Prior to the Exchange Offer, there has not been any public market for the
Notes, although the Old Notes are eligible for trading in the PORTAL Market.
Certain holders of Old Notes who are not eligible to participate in the
Exchange Offer are entitled to certain registration rights and the Company is
required to file the Shelf Registration
18
<PAGE> 22
Statement with respect to resales of any such Notes. The Old Notes have not
been registered under the Securities Act and will be subject to restrictions on
transferability to the extent that they are not exchanged for New Notes by
holders who are entitled to participate in this Exchange Offer. See "--
Consequences of Failure to Exchange." The Company does not intend to list the
New Notes on any national securities exchange or to seek the admission thereof
to trading in the National Association of Securities Dealers Automated
Quotation System. Accordingly, no assurance can be given that an active public
or other market will develop for the Notes or as to liquidity of or the trading
market for the Notes. If a trading market does not develop or is not
maintained, holders of the Notes may experience difficulty in reselling the
Notes or may be unable to sell them at all. If a market for the Notes
develops, any such market may be discontinued at any time. If a public trading
market develops for the Notes, future trading prices of the Notes will depend
on many factors, including, among other things, prevailing interest rates, the
Company's results of operations and the market for similar securities.
Depending on prevailing interest rates, the market for similar securities and
other factors, including the financial condition of the Company, the Notes may
trade at a discount from their principal amount.
EXCHANGE OFFER PROCEDURES
Issuance of the New Notes in exchange for the Old Notes pursuant to
the Exchange Offer will be made only after a timely receipt by the Company of
such Old Notes, a properly completed and duly executed Letter of Transmittal
and all other required documents. Therefore, holders of the Old Notes desiring
to tender such Old Notes in exchange for New Notes should allow sufficient time
to ensure timely delivery. The Company is under no duty to give notification
of defects or irregularities with respect to the tenders of Old Notes for
exchange. Old Notes that are not tendered or are tendered but not accepted
will, following the consummation of the Exchange Offer, continue to be subject
to the existing restrictions upon transfer thereof and, upon consummation of
the Exchange Offer certain registration rights under the Registration Rights
Agreement will terminate. In addition, any holder of Old Notes who tenders in
the Exchange Offer for the purpose of participating in a distribution of the
New Notes may be deemed to have received restricted securities and, if so, will
be required to comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale transaction.
Each broker-dealer that receives New Notes for its own account in exchange for
Old Notes, where such Old Notes were acquired by such broker-dealer as a result
of market-making activities or other trading activities, must acknowledge that
it will deliver a prospectus in connection with any resale of such New Notes.
See "Plan of Distribution." To the extent that Old Notes are tendered and
accepted in the Exchange Offer, the trading market for untendered and tendered
but unaccepted Old Notes could be adversely affected. See "The Exchange
Offer."
POSSIBLE RUST LIABILITIES OF NDSI
NDSI periodically receives warranty claims relating to rust spotting
and staining that appears on a customer's exterior finished wall. These rust
claims arise from the presence of impurities in the sand component of product
manufactured by NDSI's operating subsidiary,
19
<PAGE> 23
Dryvit, prior to April 1991. The impurities consisted of ferrous and pyrite
particles which developed into rust spots when exposed to seasonal weathering
conditions. The rust spots affect only the aesthetic appearance of the
building and have no impact on its structural integrity.
NDSI has implemented comprehensive quality control procedures
specifically aimed at ensuring the elimination of impurities from the
manufacturing process. The quality control procedures include independent
inspection and analysis of sand sources prior to selecting suppliers, analysis
of sand shipments before shipping and again upon arrival at the production
facilities, and the inclusion of high powered magnets in the sand handling
process at all facilities. These quality control steps were completed and in
place by April 1991. NDSI has not received any rust warranty claims relating
to product produced after April 1991. Rust warranty expense amounted to
$2,416,983 in 1994 and $1,904,302 in 1993.
However, based on their experience with reported claims, management
believes that an estimate of future claims cannot be reasonably determined,
since not all product produced prior to April 1991 contained impurities and not
all projects having rust spots will result in a claim. Significant increases
in future rust warranty claims could have an adverse impact on the Company's
results of operations.
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
The Old Notes were sold by the Company on June 20, 1995 to the Initial
Purchasers pursuant to the Purchase Agreement. The Initial Purchasers
subsequently placed the Old Notes with "qualified institutional buyers" in
reliance on Rule 144A under the Securities Act or to institutional "accredited"
buyers within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501
under the Securities Act. Pursuant to the Registration Rights Agreement
executed in connection with the Company's sale of the Old Notes to the Initial
Purchasers, the Company agreed (i) to file with the Commission a registration
statement under the Securities Act with respect to the Exchange Offer within 45
days of the Closing Date, (ii) use its best efforts to cause such Exchange
Offer Registration Statement (the "Exchange Offer Registration Statement") to
become effective under the Securities Act on or prior to 120 days after the
Closing Date (the "Exchange Offer Effectiveness Target Date"), and (iii) unless
the Exchange Offer would not be permitted by law or a policy of the Commission,
to commence the Exchange Offer promptly following the effectiveness of the
Exchange Offer Registration Statement and use its best efforts to issue within
150 days of the Closing Date New Notes in exchange for all Old Notes tendered
prior thereto in the Exchange Offer. This Prospectus is intended to satisfy
such Company obligations under the Registration Rights Agreement. A copy of
the Registration Rights Agreement has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part. The term "Holder"
with respect to the Exchange Offer means any person in whose name Old Notes are
registered on the books of the Company or any other person who has obtained a
properly completed bond power from the registered holder.
20
<PAGE> 24
Based on the position of the Staff of the Division of Corporation
Finance of the Commission set forth in certain interpretive letters addressed
to third parties, the Company believes that New Notes issued pursuant to the
Exchange Offer in exchange for Old Notes may be offered for resale, resold and
otherwise transferred by any holder of such New Notes (other than (i) a
broker-dealer who acquired Old Notes directly from the Company for resale
pursuant to Rule 144A or any other available exemption under the Securities Act
or (ii) any person who is an "affiliate" of the Company within the meaning of
Rule 405 under the Securities Act) without further compliance with the
registration and prospectus delivery provisions of the Securities Act, provided
that such New Notes are acquired in the ordinary course of such holder's
business and such holder does not intend to participate and has no arrangement
or understanding with any person to participate in the distribution of such New
Notes. Any Holder who tenders in the Exchange Offer with the intention to
participate, or for the purpose of participating, in a distribution of the New
Notes could not rely on the position of the Staff of the Division of
Corporation Finance of the Commission enumerated in interpretive letters
addressed to third parties and, in the absence of an exemption therefrom, must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction. In addition, any
such resale transaction should be covered by an effective registration
statement containing the selling securityholders information required by Item
507 of Regulation S-K. See "Description of Notes--Registration Rights." Each
broker-dealer that receives New Notes for its own account in exchange for Old
Notes, where such Old Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such New Notes. See
"Plan of Distribution."
By tendering in the Exchange Offer, each Holder will represent to the
Company that, among other things, (i) the New Notes acquired pursuant to the
Exchange Offer are being obtained in the ordinary course of business of the
person receiving such New Notes, whether or not such person is the Holder, (ii)
neither the Holder nor any such other person has an arrangement or
understanding with any person to participate in the distribution of such New
Notes, (iii) neither the Holder nor any such other person is an "affiliate," as
defined under Rule 405 of the Securities Act, of the Company, and (iv) the
Holder and such other person acknowledge that (a) any person participating in
the Exchange Offer for the purpose of distributing the New Notes must, in the
absence of an exemption therefrom, comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any resale of
the New Notes and cannot rely on the interpretive letters referenced above and
(b) failure to comply with such requirements in such instance could result in
such Holder incurring liability under the Securities Act for which such Holder
is not indemnified by the Company.
As a result of the filing and the effectiveness of the Exchange Offer
Registration Statement of which this Prospectus is a part, certain prospective
increases in the interest rate on the Old Notes provided for in the
Registration Rights Agreement will not occur. Following the consummation of
the Exchange Offer, Holders of Old Notes not tendered will generally not have
any further registration rights and the Old Notes will continue to be subject
to certain restrictions on transfer. Accordingly, the liquidity of the market
for the Old Notes could be adversely affected. See "Description of the
Notes--Registration Rights."
21
<PAGE> 25
TERMS OF THE EXCHANGE OFFER
The Company hereby offers, upon the terms and subject to the
conditions set forth herein and in the accompanying Letter of Transmittal, to
exchange $1,000 in principal amount of New Notes for each $1,000 in principal
amount of its outstanding Old Notes. New Notes will be issued only in integral
multiples of $1,000 to each tendering Holder whose Old Notes are accepted in
the Exchange Offer. The Company will accept any Old Notes validly tendered and
not withdrawn prior to 5:00 p.m., New York City time, on November 10, 1995, the
Expiration Date of the Exchange Offer. Old Notes that are not accepted for
exchange will be returned as promptly as practicable after the Expiration Date.
Holders may tender all or a portion of their Old Notes pursuant to the Exchange
Offer.
The form and terms of the New Notes under the Indenture will be
identical in all material respects to the form and terms of the Old Notes,
except that (i) the offering of the New Notes will have been registered under
the Securities Act and hence the New Notes will not bear legends restricting
the transfer thereof and (ii) holders of New Notes will not be entitled to
certain rights intended for holders of unregistered securities under the
Registration Rights Agreement which will terminate upon the consummation of the
Exchange Offer. The New Notes evidence the same debt as the Old Notes (which
they replace) and will be issued under, and be entitled to the benefits of, the
Indenture governing the Old Notes. The New Notes will bear interest from their
date of issuance at the same rate and upon the same terms as the Old Notes.
See "Description of Notes." Accrued and unpaid interest on the Old Notes
accepted for exchange for the period to but not including the date of issuance
of the New Notes (the "Exchange Date") will be paid to the holders of New Notes
on the first Interest Payment Date (as defined in "Description of Notes").
Holders whose Old Notes are accepted for exchange will be deemed to have waived
the right to receive any payment in respect of interest on the Old Notes
accrued on and after the Exchange Date.
As of the date of this Prospectus, $150,000,000 aggregate principal
amount of the Old Notes was outstanding and of such amount, $148,000,000
aggregate principal amount was registered in the name of Cede & Co., as nominee
for DTC. Solely for reasons of administration (and for no other purpose) the
Company has fixed the close of business on October 10, 1995, as the record date
(the "Record Date") for the Exchange Offer for purposes of determining the
persons to whom this Prospectus and the Letter of Transmittal will be mailed
initially. Only a registered holder of the Old Notes (or such holder's legal
representative or attorney-in-fact) as reflected on the records of the Trustee
under the Indenture may participate in the Exchange Offer.
Holders of Old Notes do not have any appraisal or dissenters' rights
in connection with the Exchange Offer.
The Company shall be deemed to have accepted validly tendered Old
Notes when, as and if the Company has given oral or written notice thereof to
the Exchange Agent. The Exchange
22
<PAGE> 26
Agent will act as agent for tendering Holders of Old Notes for the purposes of
receiving the New Notes from the Company.
If any tendered Old Notes are not accepted for exchange because of an
invalid tender, the occurrence of certain other events set forth herein or
otherwise, certificates for any such unaccepted Old Notes will be returned,
without expense, to the tendering Holder thereof as promptly as practicable
after the Expiration Date.
Tendering Holders will not be required to pay brokerage commissions or
fees or, subject to the instructions of the Letter of Transmittal, transfer
taxes with respect to the exchange of Old Notes for New Notes pursuant to the
Exchange Offer. The Company will pay all charges and expenses, other than
certain taxes which may be levied in the event of any transfer of ownership, in
connection with the Exchange Offer. See "The Exchange Offer--Fees and
Expenses."
Neither the Board of Directors of the Company nor the Company makes
any recommendation to holders of Old Notes as to whether to tender or refrain
from tendering all or any portion of their Old Notes pursuant to the Exchange
Offer. In addition, no one has been authorized to make any such
recommendation. Holders of Old Notes must make their own decision whether to
tender pursuant to the Exchange Offer and, if so, the aggregate amount of Old
Notes to tender after reading this Prospectus and the Letter of Transmittal and
consulting with their advisers, if any, based on their own financial position
and requirements.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean 5:00 p.m. New York City time, on
November 10, 1995, unless the Company, in its sole discretion, extends the
Exchange Offer, in which case the term "Expiration Date" shall mean the latest
date and time to which the Exchange Offer is extended.
In order to extend the Exchange Offer, the Company will notify the
Exchange Agent of any extension by oral or written notice and will make a
public announcement thereof, each prior to 9:00 a.m., New York City time on the
next business day after the previously scheduled Expiration Date.
The Company reserves the right, in its sole discretion, (i) to delay
accepting any Old Notes, (ii) to extend the Exchange Offer, or (iii) to amend
the terms of the Exchange Offer in any manner. Any such delay in acceptance,
extension, or amendment will be followed as promptly as practicable by a public
announcement thereof. If the Exchange Offer is amended in a manner determined
by the Company to constitute a material change, the Company will promptly
disclose such amendments by means of a prospectus supplement that will be
distributed to the registered holders of Old Notes, and the Company will extend
the Exchange Offer for a period of five to 10 business days, depending upon the
significance of the amendment and the manner of disclosure to the registered
holders, if the Exchange Offer would otherwise expire during such five to 10
business day period.
23
<PAGE> 27
Without limiting the manner in which the Company may choose to make
public announcement of any delay, extension, or amendment of the Exchange
Offer, the Company shall not have an obligation to publish, advertise or
otherwise communicate any such public announcement, other than by making a
timely release to the Dow Jones News Service.
INTEREST ON THE NEW NOTES
The New Notes will bear interest from their date of issuance. Holders
of Old Notes that are accepted for exchange will receive, in cash, accrued
interest thereon to, but not including, the date of issuance of the New Notes.
Such interest will be paid with the first interest payment of the New Notes.
Interest of the Old Notes accepted for exchange will cease to accrue on the day
prior to the issuance of the New Notes.
The New Notes bear interest (as do the Old Notes) at a rate equal to
7.0% per annum. Interest on the New Notes is payable on each June 15 and
December 15 beginning on December 15, 1995.
PROCEDURES FOR TENDERING OLD NOTES
The tender by a Holder as set forth below and the acceptance thereof
by the Company will constitute a binding agreement between the tendering Holder
and the Company upon the terms and subject to the conditions set forth in this
Prospectus and in the accompanying Letter of Transmittal. Except as set forth
below, a Holder who wishes to tender Old Notes for exchange pursuant to the
Exchange Offer must transmit such Old Notes, together with a properly completed
and duly executed Letter of Transmittal, including all other documents required
by such Letter of Transmittal, to the Exchange Agent at the address set forth
below under "--Exchange Agent" on or prior to 5:00 p.m. New York City time, on
the Expiration Date.
By executing the Letter of Transmittal, each Holder will make to the
Company the representations set forth above in the third paragraph under the
heading "--Purpose and Effect of the Exchange Offer."
THE METHOD OF DELIVERY OF OLD NOTES, LETTERS OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE ELIGIBLE HOLDER.
IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT REGISTERED MAIL, PROPERLY
INSURED, WITH RETURN RECEIPT REQUESTED BE USED. INSTEAD OF DELIVERY BY MAIL,
IT IS RECOMMENDED THAT THE ELIGIBLE HOLDER USE AN OVERNIGHT OR HAND DELIVERY
SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE TIMELY
DELIVERY.
Each signature on a Letter of Transmittal or a notice of withdrawal,
as the case may be, must be guaranteed unless the Old Notes surrendered for
exchange pursuant thereto are tendered (i) by a registered holder of the Old
Notes who has not completed either the box entitled
24
<PAGE> 28
"Special Exchange Instructions" or the box entitled "Special Delivery
Instructions" on the Letter of Transmittal or (ii) by an Eligible Institution
(as defined below). In the event that a signature on a Letter of Transmittal
or a notice of withdrawal, as the case may be, is required to be guaranteed,
such guarantee must be by a firm which is a member of a registered national
securities exchange or a member of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or is otherwise an "eligible institution"
within the meaning of Rule 17AD-15 under the Exchange Act (collectively,
"Eligible Institutions").
If Old Notes are registered in the name of a person other than a
signer of the Letter of Transmittal, the Old Notes surrendered for exchange
must either (i) be endorsed by the registered holder, with the signature
thereon guaranteed by an Eligible Institution or (ii) be accompanied by a bond
power, in satisfactory form as determined by the Company in its sole
discretion, duly executed by the registered holder, with the signature thereon
guaranteed by an Eligible Institution along with the other documents required
upon transfer by the Purchase Agreement. The term "registered holders" as used
herein with respect to the Old Notes means any person in whose name the Old
Notes are registered on the books of the Registrar for the Old Notes.
Tenders may be made only in principal amounts of $1,000 and integral
multiples thereof. Subject to the foregoing, Holders may tender less than the
aggregate principal amounts represented by the Old Notes deposited with the
Exchange Agent provided they appropriately indicate this fact in the Letter of
Transmittal accompanying the tendered Old Notes.
The Company understands that the Exchange Agent will make a request
promptly after the date of this Prospectus to establish accounts with respect
to the Old Notes at the book-entry transfer facility. DTC (the "Book-Entry
Transfer Facility"), for the purpose of facilitating the Exchange Offer, and
subject to the establishment thereof, any financial institution that is a
participant in the Book-Entry Transfer Facility's system may make book entry
delivery of Old Notes by causing such book entry transfer facility to transfer
such Old Notes into the Exchange Agent's account with respect to the Old Notes
in accordance with the Book-Entry Transfer Facility's procedures for such
transfer. Although delivery of the Old Notes may be effected through
book-entry transfer into the Exchange Agent's account at the Book-Entry
Transfer Facility, an appropriate Letter of Transmittal properly completed and
duly executed with any required signature guarantee and all other required
documents must in each case be transmitted to and received or confirmed by the
Exchange Agent at its address set forth below on or prior to the Expiration
Date, or, if the guaranteed delivery procedures described below are complied
with, within the time period provided under such procedures. Delivery of
documents to the Book-Entry Transfer Facility does not constitute delivery to
the Exchange Agent.
All questions as to validity, form, eligibility (including time of
receipt), acceptance and withdrawal of Old Notes tendered for exchange will be
determined by the Company in its sole, reasonable discretion, which
determination shall be final and binding. The Company reserves the absolute
right to reject any or all tenders of any particular Old Notes not properly
tendered or to reject any particular Old Notes which acceptance might, in the
judgment of the Company
25
<PAGE> 29
or its counsel, be unlawful. The Company also reserves the absolute right to
waive any defects or irregularities or conditions of the Exchange Offer as to
any particular Old Notes either before or after the Expiration Date (including
the right to waive the ineligibility of any Holder who seeks to tender Old
Notes in the Exchange Offer). The interpretation of the terms and conditions
of the Exchange Offer (including the Letter of Transmittal and the instructions
thereto) by the Company shall be final and binding on all parties. Unless
waived, any defects or irregularities in connection with tenders of Old Notes
for exchange must be cured within such reasonable period of time as the Company
shall determine. The Company will use reasonable efforts to give notification
of defects or irregularities with respect to tenders of Old Notes for exchange
but shall not incur any liability for failure to give such notification.
Tenders of the Old Notes will not be deemed to have been made until such
irregularities have been cured or waived.
If any Letter of Transmittal, endorsement, bond power, power of
attorney or any other document required by the Letter of Transmittal is signed
by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and, unless waived by the Company,
proper evidence satisfactory to the Company of such person's authority to so
act must be submitted.
Any beneficial owner whose Old Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender Old Notes in the Exchange Offer should contact such registered holder
promptly and instruct such registered holder to tender on such beneficial
owner's behalf. If such beneficial owner wishes to tender directly, such
beneficial owner must, prior to completing and executing the Letter of
Transmittal and tendering Old Notes, make appropriate arrangements to register
ownership of the Old Notes in such beneficial owner's name. Beneficial owners
should be aware that the transfer of registered ownership may take considerable
time.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Old Notes and (i) whose Old Notes are
not immediately available, (ii) who cannot deliver their Old Notes and Letter
of Transmittal or any other documents required by the Letter of Transmittal to
the Exchange Agent prior to the Expiration Date, or (iii) who cannot complete
the procedures for book-entry transfer on a timely basis must tender their Old
Notes according to the guaranteed delivered procedures set forth in the Letter
of Transmittal. Pursuant to such procedures:
a. such tender must be made by or through an Eligible Institution
and a Notice of Guaranteed Delivery (as defined in the Letter of Transmittal)
must be signed by such Holder;
b. prior to the Expiration Date, the Exchange Agent must have
received from the Holder and the Eligible Institution a properly completed and
duly executed Letter of Transmittal and a Notice of Guaranteed Delivery (by
facsimile transmission, mail or hand delivery) setting
26
<PAGE> 30
forth the name and address of the Holder, the certificate number or numbers of
the tendered Old Notes, and the principal amount of tendered Old Notes, stating
that the tender is being made thereby and guaranteeing that, within five
business days after the date of delivery of the Notice of Guaranteed Delivery,
the tendered Old Notes and any other required documents will be deposited by
the Eligible Institution with the Exchange Agent; and
c. such properly completed and executed documents required by the
Letter of Transmittal and the tendered Old Notes in proper form for transfer
must be received by the Exchange Agent within three business days after the
Expiration Date.
Any Holder who wishes to tender Old Notes pursuant to the guaranteed
delivery procedures described above must ensure that the Exchange Agent
received the Notice of guaranteed Delivery and Letter of Transmittal relating
to such Old Notes prior to 5:00 p.m. New York City time, on the Expiration
Date. Failure to complete the guaranteed delivery procedures outlined above
will not, of itself, affect the validity or effect a revocation of any Letter
of Transmittal form properly completed and executed by a Holder who attempted
to use the guaranteed delivery process.
ACCEPTANCE OF OLD NOTES FOR EXCHANGE; DELIVERY OF NEW NOTES
The Company will accept, promptly after the Expiration Date, all Old
Notes properly tendered and will issue the New Notes promptly after the
acceptance of the Old Notes. For purposes of the Exchange Offer, the Company
shall be deemed to have accepted properly tendered Old Notes for exchange when,
as, and if the company has given oral or written notice thereof to all Holders
of properly tendered Old Notes.
In all cases, issuances of New Notes for Old Notes that are accepted
for exchange pursuant to the Exchange Offer will be made only after timely
receipt by the Exchange Agent of such Old Notes, a properly completed and duly
executed Letter of Transmittal, and all other required documents; provided,
however, that the Company reserves the absolute right to waive any defects or
irregularities in the tender or conditions of the Exchange Offer. If any
tendered Old Notes are not accepted for any reason set forth in the terms and
conditions of the Exchange Offer or if Old Notes are submitted for a greater
principal amount than the Holder desires to exchange, such unaccepted or non-
exchanged Old Notes or substitute Old Notes evidencing the unaccepted portion,
as appropriate, will be returned without expense to the tendering Holder
thereof as promptly as practicable after the expiration or termination of the
Exchange Offer.
WITHDRAWAL RIGHTS
Tenders of the Old Notes may be withdrawn at any time prior to 5:00
p.m. New York City time on the Expiration Date. For a withdrawal to be
effective, a written notice of withdrawal must be received by the Exchange
Agent at its address set forth on the back cover page of this Prospectus. Any
such notice of withdrawal must (i) specify the name of the person
27
<PAGE> 31
having deposited the Old Notes to be withdrawn (the "Depositor"), (ii) identify
the Old Notes to be withdrawn (including the certificate number or numbers and
principal amount of such Old Notes), (iii) be signed by the Holder in the same
manner as the original signature on the Letter of Transmittal by which such Old
Notes were tendered (including any required signature guarantees) or be
accompanied by a bond power in the name of the person withdrawing the tender,
in satisfactory form as determined by the Company in its sole discretion, duly
executed by the registered holder, with the signature thereon guaranteed by an
Eligible Institution along with the other documents required upon transfer by
the Registration Rights Agreement or Purchase Agreement, and (iv) specify the
name in which such Old Notes are to be re-registered, if different from the
Depositor, pursuant to such documents of transfer. All questions as to the
validity, form and eligibility (including time of receipt) of such notices will
be determined by the Company, whose determination shall be final and binding on
all parties. The Old Notes so withdrawn, if any, will be deemed not to have
been validly tendered for exchange for purposes of the Exchange Offer. Any Old
Notes which have been tendered for exchange but which are withdrawn will be
returned to the Holder thereof without cost to such Holder as soon as
practicable after withdrawal. Properly withdrawn Old Notes may be retendered
by following one of the procedures described under "Procedures for Tendering
Old Notes" above at any time on or prior to the Expiration Date.
TERMINATION OF CERTAIN RIGHTS
Holders of the Old Notes to whom this Exchange Offer is made have
special rights under the Registration Rights Agreement that will terminate upon
the consummation of the Exchange Offer. The Registration Rights Agreement
provides that certain rights under such agreement (including the right to
receive a prospective increase in the interest rate on the Old Notes) shall
terminate upon the occurrence of (i) the filing with the Commission of the
Exchange Offer Registration Statement, (ii) the effectiveness under the
Securities Act of the Exchange Offer Registration Statement, (iii) the
consummation of the Exchange Offer, and (iv) the maintenance of the Exchange
Offer Registration Statement continuously effective for a period of not less
than the minimum period required under applicable federal and state securities
laws (provided that in no event shall such Exchange Offer remain open and the
registration statement relating hereto remain continuously effective, in each
case, for less than 20 business days), and (v) the delivery by the Company to
the registrar under the Indenture of New Notes in the same aggregate principal
amount of Old Notes tendered by Holders thereof pursuant to the Exchange Offer.
EXCHANGE AGENT
The First National Bank of Chicago has been appointed as Exchange
Agent for the Exchange Offer. Questions and requests for assistance and
requests for additional copies of the Prospectus, the Letter of Transmittal,
and other related documents should be addressed to the Exchange Agent as
follows:
28
<PAGE> 32
By Registered or Certified
--------------------------
Mail, Overnight Courier or Hand:
-------------------------------
The First National Bank of Chicago,
c/o First Chicago Trust Company of New York
14 Wall Street
8th Floor, Window 2
New York, New York 10005
Attention: Corporate Trust Administration
FEES AND EXPENSES
The expenses of soliciting tenders will be borne by the Company. The
principal solicitation is being made by mail; however, additional solicitation
may be made by telegraph, telephone or in person by officers and regular
employees of the Company and its affiliates.
The Company has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers or others
soliciting acceptance of the Exchange Offer. The Company, however, will pay
the Exchange Agent reasonable and customary fees for its services and will
reimburse it for its reasonable out-of-pocket expenses in connection therewith.
The cash expenses to be incurred in connection with the Exchange Offer
will be paid by the Company and are estimated in the aggregate to be
approximately $80,000. Such expenses include fees and expenses of the Exchange
Agent and Trustee, accounting and legal fees, filing fees and printing costs,
among others.
The Company will pay all transfer taxes, if any, applicable to the
exchange of Old Notes pursuant to the Exchange Offer. If, however, a transfer
tax is imposed for any reason other than the exchange of Old Notes pursuant to
the Exchange Offer, then the amount of any transfer taxes (whether imposed on
the registered holder or any other persons) will be payable by the tendering
Holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering Holder.
CONSEQUENCES OF FAILURE TO EXCHANGE
The Old Notes which are not exchanged for New Notes pursuant to the
Exchange Offer will remain restricted securities. Accordingly, such Old Notes
may be resold only (i) to the Company (upon redemption thereof or otherwise),
(ii) so long as the Old Notes are eligible for resale pursuant to Rule 144A, to
a person whom the seller reasonably believes is a qualified institutional buyer
within the meaning of Rule 144A under the Securities Act, purchasing for its
own account or for the account of a qualified institutional buyer to whom
notice is given that
29
<PAGE> 33
the resale, pledge or other transfer is being made in reliance on Rule 144A,
(iii) in an offshore transaction in accordance with Regulation S under the
Securities Act, but only in the case of a transfer that is effected by the
delivery to the transferee of Old Notes registered in its name (or its
nominee's name) on the books maintained by the registrar of the Old Notes, (iv)
pursuant to an exemption from registration in accordance with Rule 144 (if
available) or Rule 145 under the Securities Act, (v) in reliance on another
exemption from the registration requirements of the Securities Act, but only in
the case of a transfer that is effected by the delivery to the transferee of
Old Notes registered in its name (or its nominee's name) on the books
maintained by the registrar of the Old Notes, and subject to the receipt by the
registrar or co-registrar of a certification of the transferor and an opinion
of counsel (satisfactory to the Company) to the effect that such transfer is in
compliance with the Securities Act, or (vi) pursuant to an effective
registration statement under the Securities Act, in each case in accordance
with any applicable securities laws of any state of the United States.
Following the consummation of the Exchange Offer, holders of Old Notes will
have limited rights under the Registration Rights Agreement. See "--The Shelf
Registration Statement."
ACCOUNTING TREATMENT
The New Notes will be recorded at the same carrying value as the Old
Notes, as reflected in the Company's accounting records on the date of the
exchange. Accordingly, no gain or loss for accounting purposes will be
recognized. The expenses of the Exchange Offer will be amortized over the term
of the New Notes.
RESALES OF THE NEW NOTES
With respect to resales of New Notes, based on the position of the
Staff of the Division of Corporation Finance of the Commission set forth in
certain interpretive letters addressed to third parties, the Company believes
that a Holder (other than (i) a broker-dealer who purchases such New Notes
directly from the Company to resell pursuant to Rule 144A or any other
available exemption under the Securities Act or (ii) a person that is an
affiliate of the Company within the meaning of Rule 405 under the Securities
Act) who exchanges Old Notes for New Notes in the ordinary course of business
and who is not participating, does not intend to participate, and has no
arrangement or understanding with any person to participate, in the
distribution of the New Notes, will be allowed to resell the New Notes to the
public without further registration under the Securities Act and without
delivering to the purchasers of the New Notes a prospectus that satisfies the
requirements of Section 10 thereof. However, if any Holder acquires New Notes
in the Exchange Offer for the purpose of distributing or participating in a
distribution of the New Notes, such Holder cannot rely on the position of the
Staff of the Division of Corporation Finance of the Commission enunciated in
interpretive letters addressed to third parties and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction, unless an exemption from
registration is otherwise available. Further, each broker-dealer that receives
New Notes for its own account in exchange for Old Notes, where such Old Notes
were acquired by such broker-
30
<PAGE> 34
dealer as a result of market-making activities or other trading activities,
must acknowledge that it will deliver a prospectus in connection with any
resale of such New Notes.
As contemplated by the position of the Staff of the Division of
Corporation Finance of the Commission in the interpretive letters noted above
and the Registration Rights Agreement, each Holder accepting the Exchange Offer
is required to represent to the Company in the Letter of Transmittal that (i)
the New Notes are to be acquired by the Holder or the person receiving such New
Notes, whether or not such person is the Holder, in the ordinary course of
business, (ii) the Holder or any such other person (other than a broker-dealer
referred to in the next sentence) is not engaging and does not intend to engage
in the distribution of the New Notes, (iii) the Holder or any such other person
has no arrangement or understanding with any person to participate in the
distribution of the New Notes, (iv) neither the Holder nor any such other
person is an "affiliate" of the Company within the meaning of Rule 405 under
the Securities Act, and (v) the Holder or any such other person acknowledges
that if such Holder or other person participates in the Exchange Offer for the
purpose of distributing the New Notes it must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
resale of the New Notes and cannot rely on such interpretive letters. As
indicated above, each broker-dealer that receives New Notes for its own account
in exchange for Old Notes must also acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. For a description
of the procedures for such resales by broker-dealers, see "Plan of
Distribution."
THE SHELF REGISTRATION STATEMENT
The Registration Rights Agreement provides that if, (i) because of any
change in law or applicable interpretations thereof by the staff of the
Commission, the Company is not permitted to effect the Exchange Offer, (ii) the
Exchange Offer Registration Statement is not declared effective by October 19,
1995, or (iii) upon the request of either Initial Purchaser (with respect to
any Old Notes which were acquired directly from the Company), to the extent
such Initial Purchaser is not eligible under applicable securities laws, to
participate in the Exchange Offer, the Company will file with the Commission a
Shelf Registration Statement to cover resales of the Notes by the holders
thereof who satisfy certain conditions relating to the provision of information
in connection with the Shelf Registration Statement. The Company will use its
best efforts to cause the applicable registration statement to be declared
effective as promptly as possible by the Commission.
The Registration Rights Agreement further provides that, if obligated
to file the Shelf Registration Statement, the Company will file such with the
Commission, as promptly as practicable, after such obligation arises and use
its best efforts to cause such Shelf Registration Statement to be declared
effective by the Commission, in the case of an obligation to file a Shelf
Registration Statement as a result of a change in applicable law or Commission
interpretation, or in all other cases, on or prior to 180 days after the
Closing Date, and to use its best efforts to cause such Shelf Registration
Statement to remain effective and usable for a period of three years following
the initial effectiveness thereof. If the Company is obligated to file the
Shelf
31
<PAGE> 35
Registration Statement and such Shelf Registration Statement is not declared
effective in the time periods described above the interest rate on the effected
Notes shall be increased one-half of one percentage point (.5%) per annum of
the principal amount of effected Notes held by such holder. Following the
effectiveness of the Shelf Registration Statement, the interest rate shall
revert back to 7.0% with respect to the effected Notes.
Holders of Notes will be required to deliver information to be used in
connection with the Shelf Registration Statement and to provide comments on the
Shelf Registration Statement within the time periods set forth in the
Registration Rights Agreement in order to have their Notes included in the
Shelf Registration Statement and benefit from the provisions regarding
increased interest rates set forth above. In addition, for so long as any
effected Notes are outstanding during any period when the Company is not
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company will continue to provide to Holders of Notes and to
prospective purchasers of such Notes the information required by Rule
144A(d)(4).
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of
the New Notes offered hereby. In consideration for issuing the New Notes as
contemplated in this Prospectus, the Company will receive in exchange Old Notes
in like principal amount, the terms of which are identical in all material
respects to the New Notes. The Old Notes surrendered in exchange for the New
Notes will be retired and cancelled and cannot be reissued. Accordingly,
issuance of the New Notes will not result in any increase in the indebtedness
of the Company.
CAPITALIZATION
The following table sets forth the short-term debt and the
capitalization of the Company as of May 31, 1995 and as adjusted to give effect
to the issuance of the Notes on June 20, 1995 and the repayment of long-term
debt with the net proceeds of the offering.
<TABLE>
<CAPTION>
May 31, 1995
------------
Actual As Adjusted
------ -----------
<S> <C> <C>
Short-term debt:
Current portion of long-term debt . . . . . . . . . . . . $ 643 $ 643
-------- -------
Total short-term debt . . . . . . . . . . . . . . $ 643 $ 643
======== =======
Long-term debt, less current maturities:
Senior indebtedness . . . . . . . . . . . . . . . . . . . $243,452 $ 93,452
Ten year notes . . . . . . . . . . . . . . . . . . . . . . -0- $150,000
Liquid Yield Option notes . . . . . . . . . . . . . . . . 162,923 162,923
------- -------
Total long-term debt . . . . . . . . . . . . . . . $406,375 $406,375
======== ========
</TABLE>
32
<PAGE> 36
<TABLE>
<S> <C> <C>
Shareholders' equity:
Common shares - $.023 per share; authorized 100,000,000
shares, issued and outstanding 56,957,000 shares . . . .
$ 1,296 $ 1,296
Paid-in capital . . . . . . . . . . . . . . . . . . . . . 146,509 146,509
Retained earnings . . . . . . . . . . . . . . . . . . . . $199,206 199,206
Cumulative translation adjustment . . . . . . . . . . . . (580) (580)
------ ------
Total shareholders' equity . . . . . . . . . . . . $347,591 $347,591
-------- --------
Total Capitalization . . . . . . . . . . . . . . . . . . . $753,966 $753,966
======== ========
</TABLE>
33
<PAGE> 37
SELECTED FINANCIAL INFORMATION(1)
The selected historical consolidated financial data for the five years
in the period ended May 31, 1995 set forth below are principally derived from,
and should be read in conjunction with, the related audited consolidated
financial statements and accompanying notes included in the Company's Annual
Report on Form 10-K for the fiscal year ended May 31, 1995.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED MAY 31,
-----------------------------------------------------------------------
1995 1995
1991 1992 1993 1994 ACTUAL PRO FORMA(2)
------ ------ ------ ---- ------ ------------
(IN THOUSANDS EXCEPT PER SHARE AND RATIO DATA)
<S> <C> <C> <C> <C> <C> <C>
Income Statement Data:
Net sales . . . . $619,613 $680,091 $768,372 $815,598 $1,016,954 $1,034,043
Cost of sales . . (356,480) (393,677) (448,079) (476,146) (581,246) (590,220)
-------- -------- -------- -------- -------- -------
Gross profit . . 263,133 286,414 320,293 339,452 435,708 443,823
Selling, general and
administrative
expenses . . . (195,546) (208,822) (236,955) (237,931) (305,429) (310,404)
Interest expense, net (12,972) (16,491) (17,202) (13,427) (33,422) (24,234)
------- ------ ------- ------- -------
Income before income
taxes . . . . . 54,615 61,101 66,136 88,094 106,857 109,185
Provision for income
taxes . . . . . (17,180) (22,620) (26,638) (35,454) (45,758) (46,836)
------- ------- ------- ------- ------- -------
Net income . . . $ 37,435 $ 38,481 $ 39,498 $ 52,640 $ 61,099 $ 62,349
======== ======== ======== ======== ======== ========
Primary earnings per
share . . . . . $0.72 $ 0.73 $ 0.74 $ 0.93 $ 1.07 $ 1.09
Fully diluted earnings
per share . . . 0.71 0.72 0.72 0.89 1.01 1.03
Other Data:
Cash dividends per
share . . . . . 0.399 0.442 0.473 0.510 0.550 0.550
Average common shares
outstanding . . 52,219 52,790 53,267 56,717 57,243 57,243
Ratio of earnings to
fixed charges (3) 4.54 4.12 4.08 6.21 4.83 4.80
Balance Sheet Data:
Working capital . $142,581 $205,419 $191,872 $230,512 $270,226 $270,226
Total assets . . 457,779 623,346 648,524 660,838 959,140 959,140
Short-term debt . 21,441 7,763 21,262 1,196 643 643
Long-term debt . 130,800 273,871 258,712 233,039 406,375 406,375
Shareholders' equity 215,471 233,360 243,899 314,476 347,591 347,591
<FN>
- -------------------
(1) All information presented includes the fiscal 1994 acquisitions of
Dynatron/Bondo Corporation and Stonhard, Inc. accounted for on a
pooling-of-interests basis.
(2) On June 28, 1994, the Company acquired Rust-Oleum. The pro forma data
reflect the combined results of operations of the Company and
Rust-Oleum for the fiscal year ended May 31, 1995. The pro forma
Income Statement Data and Other Data are shown as if the acquisition
of Rust-Oleum had occurred on June 1, 1993. The pro forma amounts
give effect to appropriate adjustments resulting from the combination,
but are not necessarily indicative of future results of operations or
of what results would have been for the combined companies.
(3) For purposes of the ratio of earnings to fixed charges, earnings
consist of income from operations before income taxes and fixed
charges. Fixed charges include interest and debt expense and
one-third of rents which is deemed representative of an interest
factor.
</TABLE>
34
<PAGE> 38
DESCRIPTION OF NOTES
The New Notes are to be issued as a separate series of notes under the
same Indenture under which the Old Notes have been issued, dated as of June 1,
1995, between the Company and The First National Bank of Chicago, as trustee
(the "Trustee"). No New Notes are currently outstanding. The terms of the
Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (the "Trust Indenture
Act"). The Notes are subject to all such terms, and holders of Notes are
referred to the Indenture and the Trust Indenture Act for a statement thereof.
The definitions of certain terms used in the following summary are set forth
below under " -- Certain Definitions."
The Indenture does not limit the aggregate principal amount of debt
securities which may be issued thereunder and provides that debt securities may
be issued thereunder from time to time in one or more series (such other debt
securities issued under the Indenture, together with the Notes, are hereinafter
collectively referred to as the "Debt Securities"). The following summary of
the material provisions of the Indenture does not purport to be complete, and
where reference is made to particular provisions of the Indenture, such
provisions, including the definitions of certain terms, some of which are not
otherwise defined herein, are qualified in their entirety by reference to all
of the provisions of the Indenture and those terms made a part of the Indenture
by the Trust Indenture Act. There is no requirement that future issues of debt
securities of the Company be issued under the Indenture, and the Company is
free to employ other indentures or documentation containing provisions
different from those included in the Indenture in connection with future issues
of such other debt securities.
GENERAL
The Notes mature on June 15, 2005, are limited to $150,000,000
aggregate principal amount at any one time outstanding and are unsecured senior
obligations of the Company. Each Note bears interest at 7.0% from June 20,
1995 or from the most recent interest payment date to which interest has been
paid, payable semi-annually on June 15 and December 15 in each year, commencing
December 15, 1995, to the person in whose name the Note (or any predecessor
Note) is registered at the close of business on the June 1 or the December 1
next preceding such interest payment date.
The Old Notes and the New Notes will constitute a single series of
debt securities under the Indenture. If the Exchange Offer is consummated,
holders of the Old Notes who do not exchange their Old Notes for New Notes will
vote together with the holders of New Notes for all relevant purposes under the
Indenture. In that regard, the Indenture requires that certain actions by the
holders thereunder (including acceleration following an Event of Default) must
be taken, an certain rights must be exercised, by specified minimum percentages
of the aggregate principal amount of the outstanding debt securities of the
relevant series. In determining whether holders of the requisite percentage in
principal amount have given any notice, consent or waiver or taken any other
action permitted under the Indenture, any Old Notes which remain outstanding
after the Exchange Offer will be aggregated with the New Notes and the holders
of such Old Notes and New Notes will vote together as a single series for all
such purposes.
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Accordingly, all references herein to specified percentages in aggregate
principal amount of the outstanding Notes shall be deemed to mean, at any time
after the Exchange Offer is consummated, such percentage in aggregate principal
amount of the Old Notes and New Notes then outstanding.
Principal of and interest on the Notes are exchangeable and
transferable, at the office or agency of the Company in the City of New York
maintained for such purposes (which initially will be the office of the Trustee
maintained at The First National Bank of Chicago, c/o First Chicago Trust
Company of New York, 14 Wall Street -- 8th Floor, Window 2, New York, New York
10005, Attention: Corporate Trust Administration); provided, however, that
payment of principal or interest may be made at the option of the Company by
check mailed to the person entitled thereto as shown on the security register.
The Old Notes are issued only in fully registered form without coupons, in
denominations of $250,000 and any integral multiple of $1,000 in excess
thereof. The New Notes will be issued only in fully registered form without
coupons in denominations of $1,000 and any integral multiple of $1,000 in
excess thereof. No service charge will be made for any registration of
transfer, exchange or redemption of Notes, except in certain circumstances for
any tax or other governmental charge that may be imposed in connection
therewith.
The provisions of the Indenture do not afford the holders of the Notes
protection (whether in the form of a repurchase right or otherwise) in the
event of the decline in the Company's credit quality resulting from a highly
leveraged transaction, reorganization, restructuring, merger or other similar
transaction that may adversely affect the holders of the Notes.
OPTIONAL REDEMPTION
The Notes are not subject to redemption prior to maturity.
SINKING FUND
The Notes are not entitled to the benefit of any sinking fund or other
mandatory redemption obligation prior to maturity.
RANKING; HOLDING COMPANY STRUCTURE
The Notes are unsecured unsubordinated obligations of the Company and
rank on a parity in right of payment with all other unsecured and
unsubordinated indebtedness of the Company for borrowed money.
The Notes are obligations exclusively of the Company. The Company is
a holding company substantially all of whose consolidated assets are held by
its subsidiaries. Accordingly, the cash flow of the Company and the consequent
ability to service its debt, including the Notes, are largely dependent upon
the earnings of such subsidiaries.
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Because the Company is a holding company, the Notes will be
effectively subordinated to all existing and future indebtedness, trade
payables, guarantees, lease obligations and letter of credit obligations of the
Company's subsidiaries. Therefore, the Company's rights and the rights of its
creditors, including the holders of the Notes, to participate in the assets of
any subsidiary upon the latter's liquidation or reorganization will be subject
to the prior claims of such subsidiary's creditors, except to the extent that
the Company may itself be a creditor with recognized claims against the
subsidiary, in which case the claims of the Company would still be effectively
subordinate to any security interest in, or mortgages or other liens on, the
assets of such subsidiary and would be subordinate to any indebtedness of such
subsidiary senior to that held by the Company.
LIMITATION ON LIENS
The Indenture generally provides that the Company may not, and may not
permit any Subsidiary of the Company to, incur or suffer to exist any Lien upon
any Principal Property, or upon any Equity Interests of any Subsidiary of the
Company (whether such Principal Property or Equity Interest were owned as of
the date of the Indenture or thereafter acquired), to secure any Indebtedness
without making, or causing such Subsidiary to make, effective provision for
securing the Debt Securities issued under the Indenture equally and ratably
with (or prior to) such Indebtedness, unless after giving effect thereto, the
sum of (A) the principal amount of Indebtedness secured by all Liens incurred
after the date of the Indenture and otherwise prohibited by the Indenture and
(B) the Attributable Value of all Sale and Leaseback Transactions entered into
after the date of the Indenture and otherwise prohibited by the Indenture does
not exceed the greater of $50,000,000 or 10% of the Consolidated Shareholders'
Equity of the Company. The foregoing restrictions will not apply to Liens or
to, among other things, (i) Liens securing only the Securities issued under the
Indenture; (ii) Liens on property of a Person existing at the time such Person
is merged into or consolidated with the Company or any Subsidiary of the
Company (but only to the extent such Liens cover such property); (iii) Liens on
property existing immediately prior to the time of acquisition thereof (and not
in anticipation of the financing of such acquisition); (iv) any Lien upon any
Principal Property (including any property that becomes a Principal Property
after acquisition thereof) to secure Indebtedness incurred for the purpose of
financing all or any part of the purchase price or the cost of construction or
improvement thereof, provided that such Principal Property first becomes a
Principal Property after, or construction or development of such Principal
Property is underway on and completed after, June 1, 1995, and provided,
further, that the principal amount of any Indebtedness secured by such Lien (A)
does not exceed 100% of such purchase price or cost and (B) in incurred within
24 months after the later of the purchase thereof and the completion of
construction or improvements thereof; (v) any Lien securing certain
Indebtedness owing to the Company or to a wholly owned subsidiary of the
Company; (vi) certain Liens, as described in the Indenture, arising in the
ordinary course of business other that in connection with Indebtedness for
borrowed money; and (vii) Liens to secure Indebtedness incurred to extend,
render, refinance or refund Indebtedness secured by any Lien referred to in the
foregoing clauses (i) to (vi).
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"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at any
date as of which the amount thereof is to be determined, the total net amount
of rent required to be paid by such Person under such lease during the
remaining term thereof as determined in accordance with generally accepted
accounting principles, discounted from the respective due dated thereof to the
date of determination at a rate per annum equal to the discount rate that would
be applicable to a Capital Lease Obligation with like term in accordance with
generally accepted accounting principles. The net amount of rent required to
be paid under any such lease for any such period shall be the aggregate amount
of rent payable by the lessee with respect to such period after excluding, in
accordance with generally accepted accounting principles, amounts required to
be paid on account of insurance, taxes, assessments, utility, operating and
labor cost and similar charges and rents charged as a percentage of sales in
excess of a base amount. In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated. "Attributable Value" means, as to Capital Lease Obligation under
which any Person is at the time liable and at any date as of which the amount
thereof is to be determined, the capitalizes amount thereof that would appear
on the face of a balance sheet of such Person in accordance with generally
accepted accounting principles.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other indebtedness
arrangements conveying the right to use) real or personal property of such
Person which is required to be classified and accounted for as a capital lease
or a liability on the face of a balance sheet of such Person in accordance with
generally accepted accounting principles. The stated maturity of such
obligation, as of any date (the "measurement date"), shall be the date of the
last payment of rent or any other amount due under such lease after the
measurement date upon or after which such lease may be terminated by the
lessee, at its sole option, without payment of a penalty.
"Consolidated Shareholders' Equity" of any Person means the
consolidated shareholders' equity of such Person, determined on a consolidated
basis in accordance with generally accepted accounting principles.
"Equity Interest" in any Person is defined to mean any and all shares,
interests, participations or other equivalents (however designated) of
corporate stock of or other ownership interests in such Person, and any options
or other rights to acquire, and any securities or other interests convertible
into or exchangeable for, any of the foregoing.
"Indebtedness," with respect to any Person, means indebtedness for
borrowed money or for the unpaid purchase price of real or personal property
of, or guaranteed by, such Person (other than trade accounts payable arising in
the ordinary course of business) and computed in accordance with generally
accepted accounting principles.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security
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arrangement of any kind of nature whatsoever on or with respect to such
property or assets (including any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Principal Property" means any manufacturing, assembly or storage
facility owned or used by the Company or any Subsidiary which is located within
the United States (including its territories and possessions) or Canada, other
than any such facility the gross book value of which (including related land
and improvements thereon and all machinery and equipment included therein
without deduction of any depreciation reserves) does not exceed 4% of
Consolidated Shareholders' Equity of the Company.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any Principal Property that, within
12 months of the start of such lease and after the Reference Date, has been or
is being sold, conveyed, transferred to or otherwise disposed of by such Person
to such lender or investor or to any Person to whom funds have been or are to
be advanced by such lender or investor of the security of such property. The
term of such arrangement, as of any date (the "measurement date"), shall end on
the date of the last payment of rent or any other amount due under such
arrangement after the measurement date on or after which such arrangement may
be terminated by the lessee, at its sole option, without payment of a penalty.
"Sale Transaction" means any such sale, conveyance, transfer or other
disposition. The "Reference Date" means, for any property that becomes a
Principal Property after, or the construction or development of which is
underway on and completed after June 1, 1995 the last day of the 24th month
after the date of the acquisition, completion of construction and commencement
of operation of such property and, for any other property, June 1, 1995.
"Subsidiary" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls directly
or indirectly more than 50% of the shares of Voting Stock.
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
The Indenture generally provides that the Company may not, and may not
permit any Subsidiary of the Company to, enter into any Sale and Leaseback
Transaction (except for a period not exceeding 36 months), unless, (i) after
giving effect thereto, the sum of (A) the principal amount of Indebtedness
secured by all Liens incurred after the date of the Indenture and otherwise
prohibited by the Indenture and (B) the Attributable Value of all Sale and
Leaseback Transactions entered into after the date of the Indenture and
otherwise prohibited by the Indenture does not exceed the greater of
$50,000,000 or 10% of Consolidated Shareholders' Equity of the Company or (ii)
the Company or such Subsidiary applies or commits to apply, within 180 days
before or after the Sale Transaction pursuant to such Sale and Leaseback
Transaction, an amount equal to the Net Available Proceeds therefrom to the
repayment of Indebtedness of the Company (including any Debt Securities) which
is pari passu with or prior to the Debt Securities issued under the Indenture
(or, if none, other Indebtedness of the Company or, if non, Indebtedness of any
Subsidiary of the Company),
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"Net Available Proceeds" from any Sale Transaction by any Person means
cash or readily marketable cash equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiree of indebtedness or obligations relating to the properties or assets
that are the subject of such Sale Transaction or received in any other noncash
form) therefrom by such Person, net of (i) al legal, title and recording taxes,
expenses, commissions and other fees and expenses incurred an all federal,
state, provincial, foreign and local taxes required to be accrued as a
liability as a consequence of such Sale Transaction, (ii) all payments made by
such Person or its Subsidiaries on any Indebtedness which is secured in whole
or in part by any such properties and assets in accordance with the terms of
any Lien upon or with respect to any such properties and assets of which must,
by the terms of such Lien, or in order to obtain a necessary consent to such
Sale Transaction or by applicable law, be repaid out of the proceeds from such
Sale Transaction, and (iii) all distributions and other payments made to
minority interest holder in subsidiaries of such persons or joint ventures as a
result of such Sale Transaction.
CONSOLIDATION, MERGER, SALE OF ASSETS
The Company may consolidate or merge with or into, or transfer it
assets substantially as an entirety to, any corporation organized under the
laws of any domestic jurisdiction, provided that the successor corporation
assumes the Company's obligations on the Debt Securities and under the
Indenture, that after giving effect to the transaction no Event of Default, and
no event which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing, and that certain other
conditions are met.
EVENTS OF DEFAULT
The following will be "Events of Default" under the Indenture:
(i) failure to pay any interest on any Debt Security when it
becomes due and payable, and such failure shall continue for a period
of 30 days;
(ii) failure to pay the principal of (or premium, if any, on)
any Debt Security at its maturity (upon acceleration, optional or
mandatory redemption, required repurchase or otherwise);
(iii) failure to perform, or breach of, any covenant or
agreement of the Company under the Indenture (other than a default in
the performance of, or breach of, a covenant or agreement which is
specifically dealt with in clause (i) or (ii) and such default or
breach shall continue for a period of 60 days after written notice of
such failure has been given, by certified mail, (x) to the Company by
the Trustee or (y) to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the outstanding Notes,
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" under the Indenture;
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(iv) one or more defaults shall have occurred under any
agreements, indentures or instruments under which the Company (or any
subsidiary) then has outstanding Indebtedness in excess of a principal
amount equal to in the aggregate the greater of $50 million or 10% of
Consolidated Shareholders' Equity of the Company and, if not already
matured at its final maturity in accordance with its terms, such
Indebtedness shall have been accelerated;
(v) one or more judgments, orders or decrees for the payment
of money in excess of $50 million, either individually or in the
aggregate (net of amounts covered by insurance, bond, surety or
similar instrument), shall be entered against the Company or any
Subsidiary, or any of their respective properties, and shall not be
discharged and either (a) any creditor shall have commenced an
enforcement proceeding upon such judgment, order or decree or (b)
there shall have been a period of 60 consecutive days during which a
stay of enforcement of such judgment or order, by reason of an appeal
or otherwise, shall not be in effect;
(vi) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the
Company or any Material Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law of (b) a decree or
order adjudging the Company or any Material Subsidiary under any
applicable federal or state law, or appointing a custodian, receive,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Material Subsidiary or of any
substantial part of their respective properties, or ordering the
signing up or liquidation of their affairs, and any such decree or
order for relief shall continue to be in effect, or any such other
decree or order shall be unstayed and in effect, for a period of 60
consecutive days; or
(vii) (a) the Company or any Material Subsidiary commences a
voluntary case or proceeding under any applicable Bankruptcy Law or
any other case or proceeding to be adjudicated bankrupt or insolvent,
(b) the Company or any Material Subsidiary consents to the entry or a
decree or order for relief in respect of the Company of any Material
Subsidiary in an involuntary case or proceeding under any applicable
Bankruptcy Law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, (c) the Company or any Material
Subsidiary files a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law,
(d) the Company or any Material Subsidiary (x) consents to the filing
of such petition or the appointment of, or taking possession by, a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company of any Material Subsidiary or of any
substantial part of their respective properties or (y) makes an
assignment for the benefit of creditors or (e) the Company or any
Material Subsidiary takes any corporate action in furtherance of any
such actions in this paragraph (vii).
If an Event of Default (other than as specified in clauses (vi) and
(vii) of the prior paragraph) shall occur and be continuing, the
Trustee or the holders of not less than 25% in aggregate principal
amount of the Debt Securities then outstanding may, and the
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Trustee at the request of such Holders shall, declare all unpaid
principal of (and premium, if any, on) and accrued interest on all the
Debt Securities to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders of
the Debt Securities) provided that so long as the Revolving Credit
Facility is in effect, such declaration shall not become effective
until the earlier of (a) five business days after receipt of such
notice of acceleration from the Holders or the Trustee by the agent
under the Revolving Credit Facility or (b) acceleration of the
Indebtedness under the Revolving Credit Facility. Thereupon such
principal shall become immediately due and payable, and the Trustee
may, at its discretion, proceed to protect and enforce the rights of
the holders of Debt Securities by appropriate judicial proceeding. If
an Event of Default specified in clause (vi) and (vii) of the prior
paragraph occurs, then all the Debt Securities shallipso facto become
and be immediately due and payable, in an amount equal to the
principal amount of the Debt Securities, together with accrued and
unpaid interest, if any, to the date the Debt Securities become due
and payable, without any declaration or other act on the part of the
Trustee or any Holder.
After a declaration of acceleration, but before a judgment or decree
for payment of the money due has been obtained by the Trustee, the holders of a
majority in aggregate principal mounts of Debt Securities outstanding, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if (a) the Company has paid or deposited with
the Trustee a sum sufficient to pay (i) all sums paid or advanced by the
Trustee under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, (ii) all
overdue interest on all Debt Securities, and (iii) to the extent that payment
of such interest is lawful, interest upon overdue interest at the rate borne by
the Debt Securities; and (b) all Events of Default, other than the non-payment
of principal of the Debt Securities which has become due solely by such
declaration of acceleration, have been cured or waived; and (c) the rescission
will not conflict with any judgment or decree.
"Bankruptcy Law" means Title 11, United States Bankruptcy Code of
1978, as amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization
or relief of debtors or any amendment to, succession to or change in any such
law.
"Material Subsidiary" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls directly
or indirectly more than 50% of the shares of Voting Stock and whose net sales
exceed 4% of the Company's consolidated net sales as determined in accordance
with generally accepted accounting principles consistently applied.
The holders of not less than a majority in aggregate principal amount
of the Debt Securities outstanding may on behalf of the holders of all the Debt
Securities waive any past defaults under the Indenture and its consequences,
except a default in the payment of the principal of (and premium, if any, on)
or interest on any Debt Security, or in respect of a
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covenant or provision which under the Indenture cannot be modified or amended
without the consent of the holder of each Debt Security outstanding.
The Company is also required to notify the Trustee within five
business days of the occurrence of any default.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Company may discharge certain obligations to holders of any series
of Debt Securities that have not already been delivered to the Trustee for
cancellation and that either have become due and payable or will become due and
payable within one year (or scheduled for redemption within one year) by
depositing with the Trustee, in trust, funds in U.S. Dollars or in such Foreign
Currency in which such Debt Securities are payable in an amount sufficient to
pay the entire indebtedness on such Debt Securities in respect of principal
(and premium, if any) and interest to the date of such deposit (if such Debt
Securities have become due and payable) or to the maturity thereof, as the case
may be.
The Indenture provides that, if the provisions of Section 402 thereof
are made applicable to the Debt Securities of or within any series pursuant to
Section 301 thereof, the Company may elect either (a) to defease and be
discharged from any and all obligations with respect to such Debt Securities
(except for, among other things, the obligation to pay Additional Amounts, if
any, upon the occurrence of certain events of taxation, assessment or
governmental charge with respect to payments on such Debt Securities and the
obligations to register the transfer or exchange of such Debt Securities, to
replace temporary or mutilated, destroyed, lost or stolen Debt Securities, to
maintain an office or agency in respect of such Debt Securities and to hold
moneys for payment in trust) ("defeasance") or (b) to be release from its
obligations with respect to such Debt Securities under the covenants described
in "--- Limitation on Liens" and "---Limitation on Sale and Leaseback
Transactions" above or, if provided pursuant to Section 301 of the Indenture,
its obligations with respect to any other covenant, and any omission to comply
with such obligations shall not constitute a default or an Event of Default
with respect to such Debt Securities ("covenant defeasance"), in either case
upon the irrevocable deposit by the Company with the Trustee, in trust, of an
amount, in U.S. Dollars or in such Foreign Currency in which such Debt
Securities are payable at stated maturity, or Government Obligations (as
defined below), or both, applicable to such Debt Securities which through the
scheduled payment of principal and interest in accordance with their terms will
provide money in an amount sufficient to pay the principal of (and premium, if
any) and interest on such Debt Securities, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor.
Such a trust may only be established if, among other things, (i) the
applicable defeasance or covenant defeasance does not result in a breach or
violation of, or constitute a default under, the Indenture or any other
material agreement or instrument to which the Company is a party or by which is
bound, (ii) no default or Event of Default with respect to the Debt Securities
to be defeased shall have occurred and be continuing on the date of the
establishment of such a trust and (iii) the Company has delivered to the
Trustee an Opinion of Counsel (as specified in the Indenture) to the effect
that the holders of such Debt Securities will not recognize income,
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gain or loss for U.S. federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance or covenant defeasance had not occurred, and
such Opinion of Counsel, in the case of defeasance, must refer to and be based
upon a letter ruling of the Internal Revenue Service received by the Company, a
Revenue ruling published by the Internal Revenue Service or a change in
applicable U.S. federal income tax law occurring after the date of the
Indenture.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government or the
governments in the confederation which issued the Foreign Currency in which the
Debt Securities of a particular series are payable, for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America or such government or governments which issued the Foreign
Currency in which the Debt Securities of such series are payable, the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government or
governments, which, in the case of clauses (i) and (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of
interest on or principal of or any other amount with respect to any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest on or principal
of or any other amount with respect to the Government Obligation evidenced by
such depository receipt.
If after the Company has deposited funds and/or Government Obligations
to effect defeasance or covenant defeasance with respect to Debt Securities of
any series, (a) the holder of a Debt Security of such series is entitled to,
and does, elect pursuant to Section 301 of the Indenture or the terms of such
Debt Security to receive payment in a currency other than that in which such
deposit has been made in respect of such Debt Security, or (b) a Conversion
Event (as defined below) occurs in respect of the Foreign Currency in which
such deposit has been made, the indebtedness represented by such Debt Security
shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any) and interest, if
any, on such Debt Security as such Debt Security becomes due out of the
proceeds yielded by converting the amount so deposited in respect of such Debt
Security into the currency in which such Debt Security becomes payable as a
result of such election or such Conversion Event based on (x) in the case of
payments made pursuant to clause (a) above, the applicable market exchange rate
for such currency in effect on the second business day prior to
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such payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as
feasible) at the time of the Conversion Event.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country or the confederation which
issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of or within the international
banking community, (ii) the ECU both within the European Monetary System and
for the settlement of transactions by public institutions of or within the
European Union or (iii) any currency unit or composite currency other than the
ECU for the purposes for which it was established. All payments of principal
of (and premium, if any) and interest on any Debt Security that is payable in a
Foreign Currency that ceases to be used by its government or confederation of
issuance shall be made in U.S. dollars.
In the event the Company effects covenant defeasance with respect to
any Debt Securities and such Debt Securities are declared due and payable
because of the occurrence of any Event of Default other than an Event of
Default with respect to Sections 1005 and 1006 of the Indenture (which Sections
would no longer be applicable to such Debt Securities after such covenant
defeasance) or with respect to any other covenant as to which there has been
covenant defeasance, the amount in such Foreign Currency in which such Debt
Securities are payable, and Government Obligations on deposit with the Trustee,
will be sufficient to pay amounts due on such Debt Securities at the time of
their stated maturity but may not be sufficient to pay amounts due on such Debt
Securities at the time of the acceleration resulting from such Event of
Default. However, the Company would remain liable to make payment of such
amounts due at the time of acceleration.
Under the Indenture, the Company is required to furnish to the Trustee
annually a statement as to performance by the Company of certain of its
obligations under the Indenture and as to any default in such performance. The
Company is also required to delivery to the Trustee, within five days after the
occurrence thereof, written notice of any event which after notice or lapse of
time or both would constitute an Event of Default.
SATISFACTION AND DISCHARGE
The Indenture will be discharged and will cease to be of further
effect (except as to surviving rights of registration of transfer or exchange
of Debt Securities, as expressly provided for in the Indenture) as to all
outstanding Debt Securities when (a) either (i) all the Debt Securities
theretofore authenticated and delivered (other than lost, stolen or destroyed
Debt Securities which have been replaced or paid) have been delivered to the
Trustee for cancellation or (ii) all Debt Securities not theretofore delivered
to the Trustee for cancellation (x) have become due and payable, (y) will
become due and payable at their stated maturity within one year or (z) are to
be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company, and the Company has irrevocably deposited or
caused to be deposited
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with the Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Debt Securities not theretofore delivered to the Trustee
for cancellation, including principal of (and premium, if any, on) and accrued
interest at such stated maturity or redemption date; (b) the Company has paid
or caused to be paid all other sums payable under the Indenture by the Company;
and (c) the Company has delivered to the Trustee an Officers' Certificate and
an opinion of counsel each stating that (i) all conditions precedent under the
Indenture relating to the satisfaction and discharge of the Indenture has been
complied with and (ii) such satisfaction and discharge will not result in a
breach or violation of, or constitute a default under, the Indenture or any
other material agreement or instrument to which the Company is a party or by
which the Company is bound.
MODIFICATIONS AND AMENDMENTS
Without the consent of any holders, the Company and Trustee, at any
time and form time to time, may enter into one or more indentures supplemental
to the Indenture for any of the following purposes: (1) to evidence the
succession of another Person to the Company; (2) to add to the covenants of the
Company for the benefit of the holders, or to surrender any right or power
therein conferred upon the Company; (3) to add or change any provisions of the
Indenture to facilitate the issuance of bearer Debt Securities; (4) to
establish the form or terms of Debt Securities of any series and related
coupons; (5) to evidence and provide for the acceptance of the appointment
under the Indenture by a successor Trustee; (6) to cure any ambiguity, to
correct or supplement any provision in the Indenture which may be defective or
inconsistent with any other provision in the Indenture, provided that such
actions pursuant to this clause do not adversely affect the interests of the
holders of Debt Securities of any series or any related coupons in any material
respect; (7) to add to, or delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Debt Securities; (8) to add any additional
Events of Default; (9) to supplement any of the provisions of the Indenture to
such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Debt Securities, provided that such action pursuant
to this clause does not adversely affect the interests of holders of Debt
Securities of such series or any related coupons in any material respect; (10)
to secure the Debt Securities; (11) to make provision with respect to
conversion rights of holders of Debt Securities of any series; and (12) to
amend or supplement any provision contained in the Indenture or in any
supplemental indenture, provided that such amendment or supplement does not
materially adversely affect the interests of the holders of any Debt Securities
then outstanding; provided that certain legal opinions and Officers'
Certificates are delivered.
Modifications and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the holders of not less than
66-2/3% in aggregate outstanding principal amount of the Debt Securities;
provided, however, that no such modification or amendment may, without the
consent of the holder of each outstanding Debt Security affected thereby: (i)
change the stated maturity of the principal of, or any installment of interest
on, andy Debt Security or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or change
the coin or currency in which the
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principal of any Debt Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the stated maturity thereof; (ii) reduce the percentage in
principal amount of outstanding Debt Securities, the consent of whose holders
is required for any such modifications and amendments or the consent of whose
holders is required for any waiver; (iii) modify any of the provisions relating
to supplemental indentures requiring the consent of holders or relating to the
waiver of past defaults or relating to the waiver of certain covenants, except
to increase the percentage of outstanding Debt Securities required for such
actions or to provide that certain other provisions of the Indenture cannot be
modified or waived without the consent of the holder of each Debt Security
affected thereby; or (iv) make any change that adversely affects the right to
convert or exchange any Debt Security.
GOVERNING LAW
The Indenture and the Notes will be governed by, and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of law principles thereof.
BOOK-ENTRY; DELIVERY AND FORM
The certificates representing the Notes will be issued in full
registered form, without coupons. Except as described under Certificated Notes
below, the New Notes will be deposited with, or on behalf of, The Depository
Trust Company ("DTC"), New York, New York, as depository (the "Depository"),
and registered in the name of Cede & Co., as DTC's nominee, in the form of a
global Note certificate (the "Global Certificate").
GLOBAL CERTIFICATES. Ownership of beneficial interests in a Global
Certificate will be limited to persons who have accounts with DTC
("participants") or persons who hold interests through participants. Ownership
of beneficial interests in the Global Certificates will be shown on, and the
transfer of these ownership interests will be effected only through, records
maintained by DTC or its nominee (with respect to interests of participants)
and the records of participants (with respect to interests of persons other
than participants).
So long as DTC, or its nominee, is the registered owner or holder of a
Global Certificate, DTC or such nominee, as the case may be, will be considered
the sole owner or holder of the Notes represented by such Global Certificate
for all purposes under the Indenture and the New Notes. In addition, no
beneficial owner of an interest in a Global Certificate will be able to
transfer that interest except in accordance with DTC's applicable procedures
(in additional to those under the Indenture referred to herein).
Payments on Global Certificates will be made to DTC, or its nominee,
as the registered owner thereof. Neither the Company, the Trustee nor any
paying agent will have any responsibility or liability for any aspect of the
records relating to or payment made on account
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of beneficial ownership interests in the Global Certificates or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Company expects that DTC, or its nominee, upon receipt of any
payment in respect of a Global Certificate representing any New Notes held by
it or its nominee, will immediately credit participants' accounts with payments
in amounts proportionate to their respective beneficial interests in the
principal amount of such Global Certificate for such New Notes as shown on the
records of DTC or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in such Global Certificate held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers registered in the names of nominees for such customers. Such
payments will be the responsibility of such participants.
Transfers between participants in DTC will be effected in the ordinary
way in accordance with DTC rules. The laws of some states require that certain
persons take physical delivery of securities in definitive form. Consequently,
the ability to transfer beneficial interests in a Global Certificate to such
persons may be limited. Because DTC can only act on behalf of participants,
who in turn act on behalf of indirect participants (defined below) and certain
banks, the ability of a person having a beneficial interest in a Global
Certificate to pledge such interest to persons or entities that do not
participate in the DTC system, or otherwise take actions in respect of such
interest, may be affected by the lack of a physical certificate of such
interest.
The Company believes that it is the policy of DTC that it will take
any action permitted to be taken by a holder of Notes (including the
presentation of Notes for exchange as described below under "Exchange Offer;
Registration Rights") only at the direction of one or more participants to
whose account interests in the Global Certificates are credited and only in
respect of such portion of the aggregate principal amount at maturity of the
Notes as to which such participant or participants has or have given such
direction.
The Indenture provides that if (i) the Depository notifies the Company
that it is unwilling or unable to continue as Depository or if the Depository
ceases to be eligible under the Indenture and a successor depository is not
appointed by the Company within 90 days, (ii) the Company determines that the
Notes shall no longer be represented by Global Certificates and executes and
delivers to the Trustee a Company order to such effect or (iii) an Event of
Default or event which, with notice or lapse of time or both, would constitute
and Event of Default with respect to the Notes shall have occurred and be
continuing, the Global Certificates will be exchanged for Notes in definitive
form of like tenor and of an equal aggregate principal amount, in authorized
denominations. Such definitive Notes shall be registered in such name or names
as the Depository shall instruct the Trustee. It is expected that such
instructions may be based upon directions received by the Depository from
participants with respect to ownership of beneficial interests in Global
Certificates.
DTC has advised the Company as follows: DTC is a limited-purpose
trust company organized under the New York Banking Law, a "banking
organization" within the meaning of the New York Banking Law, a member of the
Federal Reserve System, a "clearing corporation"
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within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Exchange Act. DTC holds securities that its participants
deposit with DTC and facilitates the settlement among participants of
securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in participants' accounts,
thereby eliminating the need for physical movement of securities certificates.
Direct participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations. Access to
the DTC system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain a custodial
relationship with a direct participant, either directly or indirectly
("indirect participants"). The rules applicable to DTC and its participants
are on file with the Commission.
Although DTC has agreed to the foregoing procedures in order to
facilitate transfers of interests in the Global Certificates among participants
of DTC, it is under no obligation to perform or continue to perform such
procedures, and such procedures may be discontinued at any time. Neither the
Company nor the Trustee will have any responsibility for the performance by DTC
or its participants or indirect participants of their respective obligations
under the rules and procedures governing their operations.
CERTIFICATED NOTES. Notes originally purchased by or transferred to
(i) institutional "accredited investors" (as defined in Rule 501 (a)(1), (2),
(3) or (7) under the Securities Act) who are not "qualified institutional
buyers" (as defined in Rule 144A under the Securities Act) ("QIBs"), (ii)
except as described below, Persons outside the United States pursuant to sales
in accordance with Regulation S under the Securities Act or (iii) any other
Persons who are not QIBs (collectively, "Non-Global Purchasers") will be issued
in registered form (the "Certified Notes"). Upon the transfer to a QIB of
Certificated Notes initially issued to a Non-Global Purchaser, such
Certificated Notes will be exchanged for an interest in the Global Certificate
representing the principal amount of Notes being transferred.
Notes originally purchased by persons outside the United States of
America pursuant to sales in accordance with Regulation S under the Securities
Act will be represented upon issuance by a temporary global Note certificate
(the "Temporary Certificate") which will not be exchangeable for Certificated
Notes until the expiration of the "40-day restricted period" within the meaning
of Rule 903(c)(3) of Regulation S under the Securities Act. The Temporary
Certificate will be registered in the name of, and held by, a temporary
certificate holder until the expiration of such 40-day restricted period, at
which time the Temporary Certificate will be delivered to the Trustee in
exchange for Certificated Notes registered in the names requested by such
temporary certificate holder. In addition, until the expiration of such 40-day
restricted period, transfers of interest in the Temporary Certificate can be
effected only through such temporary certificate holder in accordance with the
requirements set forth in "Notice to Investors."
In case any Note shall become mutilated, defaced, destroyed, lost or
stolen, the Company will execute and, upon the Company's request, the Trustee
will authenticate and deliver a new
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Note, of like tenor and equal principal amount in exchange and substitution for
such Note (upon surrender and cancellation thereof) or in lieu of and
substitution for such Note. In case such Note is destroyed, lost or stolen,
the applicant for a substituted Note shall furnish to the Company and the
Trustee such security or indemnity as may be required by them to hold each of
them harmless, and, in every case of destruction, loss or theft of such Note,
the applicant shall also furnish to the Company or the Trustee satisfactory
evidence of the destruction, loss or theft of such Note and of the ownership
thereof. Upon the issuance of any substituted Note, the Company may require
the payment by the registered holder thereof of a sum sufficient to cover fees
and expenses connected therewith.
REGARDING THE TRUSTEE
The Trust Indenture Act contains limitations on the rights of the
Trustee, should it become a creditor of the Company, to obtain payment of
claims in certain cases or to realize on certain property received by it in
respect of any such claims, as security or otherwise. The Trustee is permitted
to engage in other transactions with the Company and its subsidiaries from time
to time, provided that if the Trustee acquires any conflicting interest it must
eliminate such conflict upon the occurrence of an Event of Default, or else
resign. The Trustee currently acts as trustee with respect to the Company's
Liquid Yield Option Notes and as a Co-Agent with respect to the Company's
Revolving Credit Facility. The Company also has normal banking relationships
with the Trustee.
REGISTRATION RIGHTS
Pursuant to the Registration Rights Agreement, the Company agreed to
file with the Commission the Exchange Offer Registration Statement and, upon
its effectiveness, offer to the Holders of Transfer Restricted Securities
pursuant to the Exchange Offer who are able to make certain representations the
opportunity to exchange their Transfer Restricted Securities for New Notes. If
(i) the Company is not permitted to consummate the Exchange Offer because the
Exchange Offer is not permitted by applicable law or Commission policy or (ii)
any Holder of Transfer Restricted Securities notifies the Company that (A) it
is prohibited by law or Commission policy from participating in the Exchange
Offer or (B) that it may not resell the New Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales or (c) that it is a broker-dealer and holds Notes
acquired directly from the Company or an affiliate of the Company, the Company
will file with the Commission a Shelf Registration Statement to cover resales
of the Notes by the holders thereof who satisfy certain conditions relating to
the provision of information in connection with the Shelf Registration
Statement. The Company will use its best efforts to cause the applicable
registration statement to be declared effective as promptly as possible by the
Commission. For purposes of the foregoing, "Transfer Restricted Securities"
means each Old Note until (i) the date on which such Old Note has been
exchanged by a person other than a broker-dealer for a New Note in the Exchange
Offer, (ii) following the exchange by a broker-dealer in the Exchange Offer of
an Old
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Note for a New Note, the date on which such New Note is sold to a purchaser who
receives from such broker-dealer on or prior to the date of such sale a copy of
this Prospectus, (iii) the date on which such Old Note has been effectively
registered under the Securities Act and disposed of in accordance with the
Shelf Registration Statement or (iv) the date on which such Old Note is
distributed to the public pursuant to Rule 144 or Rule 145 under the Act.
The Registration Rights Agreement also provides that if obligated to
file the Shelf Registration Statement, the Company will use its best efforts to
cause such Shelf Registration Statement to be declared effective by the
Commission on or prior to 120 days after such obligation arises and to use its
best efforts to cause such Shelf Registration Statement to remain effective and
usable for a period of three years following the initial effectiveness thereof.
If the Company is obligated to file the Shelf Registration Statement and such
Shelf Registration Statement is not declared effective within 1880 days after
the Closing Date of the Old Notes (such event being a "Shelf Registration
Default"), then the Company will pay to each holder of Transfer Restricted
Securities, with respect to the first 90-day period immediately following such
Shelf Registration Default, liquidated damages in an amount equal to one-half
of one percentage point (.5%) per annum of the principal amount of Transfer
Restricted Securities held by such holder. Following the cure of all Shelf
Registration Defaults, the payment of liquidated damages will cease.
Holders of Notes will be required to make certain representations to
the Company in order to participate in the Exchange Offer and will be required
to deliver information to be used in connection with the Shelf Registration
Statement and to provide comments on the Shelf Registration Statement within
the time periods set forth in the Registration Rights Agreement in order to
have their Notes included in the Shelf Registration Statement and benefit form
the provisions regarding liquidated damages set forth above. In addition, for
so long as any Transfer Restricted Securities are outstanding during any period
when the Company is not subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Company will continue to provide to Holders of
Transfer Restricted Securities and to prospective purchasers of such Transfer
Restricted Securities the information required by Rule 144A(d)(4).
DESCRIPTION OF OLD NOTES
The terms of the Old Notes are identical in all material respects to
the New Notes, except that (i) the Old Notes have not been registered under the
Securities Act, are subject to certain restrictions on transfer and are
entitled to certain registration rights under the Registration Rights Agreement
(which rights will terminate upon consummation of the Exchange Offer, except to
the extent that the Initial Purchasers may have certain registration rights
under limited circumstances); (ii) the New Notes are issuable in minimum
denominations of $1,000 and integral multiples thereof compared to minimum
denominations of $250,000 and integral multiples of $1,000 in excess thereof
for the Old Notes; and (iii) the New Notes will not provide for any increase in
the interest rate thereon. In that regard, the Old Notes provide that, in the
event that the Exchange Offer is not consummated or a shelf registration
statement (the "Shelf Registration Statement") with respect to the resale of
the Old Notes is not declared effective on
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or prior to November 17, 1995, the interest rate on the Old Notes will increase
by 0.50% per annum following November 17, 1995; provided, however, that if the
Company requests holders of Old Notes to provide certain information called for
by the Registration Statement, then Old Notes owned by holders who do not
deliver such information to the Company or who do not provide comments on the
Shelf Registration Statement when required pursuant to the Registration Rights
Agreement will not be entitled to any such increase in the interest rate. Upon
the consummation of the Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, after November 17,1995, the
interest rate on any Old Notes which remain outstanding will be reduced, from
the date of such consummation or effectiveness, as the case may be, to 7.0% per
annum and the Old Notes will not thereafter be entitled to any increase in the
interest rate thereon. The New Notes are not entitled to any such increase in
the interest rate thereon. In addition, the Old Notes and the New Notes will
constitute a single series of debt securities under the Indenture.
Accordingly, holders of Old Notes should review the information set forth under
"Risk Factors-- Consequences of Failure to Exchange" and "Description of
Notes."
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following summary describes certain United States Federal income
tax considerations to holders of the New Notes who are subject to U.S. net
income tax with respect to the New Notes ("U.S. persons") and who will hold the
New Notes as capital assets. There can be no assurance that the U.S. Internal
Revenue Service (the "IRS") will take a similar view of the purchase, ownership
or disposition of the New Notes. This discussion is based upon the provisions
of the Internal Revenue Code of 1986, as amended, and regulations, rulings and
judicial decisions now in effect, all of which are subject to change. It does
not include any description of the tax laws of any state, local or foreign
governments or any estate or gift tax considerations that may be applicable to
the New Notes or holders thereof. It does not discuss all aspects of U.S.
Federal income taxation that may be relevant to a particular investor in light
of his particular investment circumstances or to certain types of investors
subject to special treatment under the U.S. Federal income tax laws (for
example, dealers in securities or currencies, S corporations, life insurance
companies, tax-exempt organizations, taxpayers subject to the alternative
minimum tax and non-U.S. persons) and also does not discuss New Notes held as
a hedge against currency risks or as part of a straddle with other investments
or as part of a "synthetic security" or other integrated investment (including
a "conversion transaction") comprised of a New Note and one or more other
investments, or situations in which the functional currency of the holders is
not the U.S. dollar.
EXCHANGE OF NOTES
The exchange of Old Notes for New Notes should not be a taxable event
to holders for federal income tax purposes. The exchange of Old Notes for the
New Notes pursuant to the Exchange Offer should not be treated as an "exchange"
for federal income tax purposes because the New Notes should not be considered
to differ materially in kind or extent from the Old
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Notes. If, however, the exchange of the Old Notes for the New Notes were
treated as an exchange for federal income tax purposes, such exchange should
constitute a recapitalization for federal income tax purposes. Accordingly,
the New Notes should have the same issue price as the Old Notes, and a holder
should have the same adjusted basis and holding period in the New Notes as it
had in the Old Notes immediately before the exchange.
INTEREST ON THE NEW NOTES
A holder of a New Note will be required to report as ordinary interest
income for U.S. Federal income tax purposes interest earned on the New Note in
accordance with the holder's method of tax accounting.
DISPOSITION OF NEW NOTES
A holder's tax basis for a New Note generally will be the holder's
purchase price for the Old Note. Upon the sale, exchange, redemption,
retirement or other disposition of a New Note, a holder will recognize gain or
loss equal to the difference (if any) between the amount realized and the
holder's tax basis in the New Note. Such gain or loss will be long-term
capital gain or loss (with certain exceptions to the characterization as
capital gain if the New Note was acquired at a market discount).
BACKUP WITHHOLDING
A holder of a New Note may be subject to backup withholding at the
rate of 31% with respect to interest paid on the New Note and proceeds from the
sale, exchange, redemption or retirement of the New Note, unless such holder(s)
is a corporation or comes within certain other exempt categories and, when
required, demonstrates that fact or (b) provides a correct taxpayer
identification number, certifies as to no loss of exemption from backup
withholding and otherwise complies with applicable requirements of the backup
withholding rules. A holder of a New Note who does not provide the Company
with his correct taxpayer identification number may be subject to penalties
imposed by the IRS.
A holder of a New Note who is not a U.S. person will generally be
exempt from backup withholding and information reporting requirements, but may
be required to comply with certification and identification procedures in order
to obtain an exemption from backup withholding and information reporting.
Any amount paid as backup withholding will be creditable against the
holder's U.S. Federal income tax liability.
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PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. This Prospectus,
as it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of New Notes received in exchange for
Old Notes where such Old Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that for a
period of 90 days after the Expiration Date, it will make this Prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale.
The Company will not receive any proceeds from any sale of New Notes
by broker-dealers. New Notes received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the New Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such New Notes. Any broker-dealer
that resells New Notes that were received by it for its own account pursuant to
the Exchange Offer and any broker or dealer that participates in a distribution
of such New Notes may be deemed to be an "underwriter" within the meaning of
the Securities Act and any profit on any such resale of New Notes and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 270 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
DESCRIPTION OF CAPITAL STOCK
GENERAL
RPM's authorized capital stock consists of 100,000,000 Common Shares,
without par value. There were 56,957,000 shares outstanding as of May 31,
1995. All presently outstanding RPM Common Shares have been duly authorized
and validly issued, and are fully paid and nonassessable. Dividends, which may
be declared at the discretion of the Board of Directors of RPM, must be paid
equally on all issued and outstanding RPM Common Shares out
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of funds legally available therefor. Upon liquidation, any excess net assets
after all payments of debts and costs must be paid to shareholders in
proportion to the number of RPM Common Shares held. RPM Common Shares are not
subject to preemptive rights, conversion rights, redemption provisions or
sinking fund provisions.
The holder of each RPM 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 RPM Common
Shares necessary under cumulative voting to elect a Director in any given year.
Subject to the provisions of Articles Seventh and Eighth of RPM's Amended
Articles of Incorporation (the "Amended Articles"), as hereinafter summarized,
all matters submitted to a vote of shareholders are determined by a vote of the
holders of shares entitling them to exercise a majority of the voting power of
RPM present in person or by proxy at a meeting called to consider such matter.
Article Seventh of RPM's Amended Articles provides, in essence, that
proposals (i) with respect to a merger, consolidation or acquisition wherein
the existing shareholders of RPM would hold less than two-thirds of the voting
power of RPM, 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 RPM, both require adoption or approval by
two-thirds of the voting power of RPM.
Article Eighth of RPM's Amended Articles provides, in essence, that
the affirmative vote of at least 80% of the voting power of RPM is required to
effect a merger, consolidation, sale, lease or exchange of substantially all of
the assets of RPM 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 RPM
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 RPM 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 has also been a
disclosure to all shareholders of any inducements in connection with the
proposed transaction offered to officers and Directors of RPM which are not
extended to all shareholders.
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OHIO LAW
As an Ohio corporation, RPM is subject to certain provisions of Ohio
law which may discourage or render more difficult an unsolicited takeover of
RPM. Among these are provisions that (i) prohibit certain mergers, sales of
assets, issuances or purchases of securities, liquidation or dissolution, or
reclassification 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) 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 RPM (one-fifth or more,
one-third or more, or a majority) can be made only with the prior authorization
of the holders of at least a majority of the total voting power of RPM and the
separate prior authorization of the holders of at least a majority of the
voting power held by shareholders other than the proposed purchaser, officers
of RPM and Directors of RPM who are also employees.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for RPM's Common Shares is Society
National Bank, Cleveland, Ohio.
LEGAL MATTERS
Certain legal matters in connection with the Notes offered hereby will
be passed upon for the Company by Calfee, Halter & Griswold, Cleveland, Ohio
and Brown & Wood, New York, New York. William A. Papenbrock, Esq., a partner
of Calfee, Halter & Griswold, is a Director of the Company and as of May 31,
1995 owned 8,907 Common Shares of the Company.
56
<PAGE> 60
INDEPENDENT PUBLIC ACCOUNTANTS
The consolidated financial statements of the Company included in its
Annual Report on Form 10-K for the fiscal year ended May 31, 1995 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 of NDSI for the fiscal year ended December
31, 1994 included in the Company's Current Report on Form 8-K dated July 24,
1995 have been examined by KPMG Peat Marwick LLP, independent public
accountants, as set forth in their report therein and incorporated herein by
reference. The report of KPMG Peat Marwick LLP covering the December 31, 1994
financial statements of NDSI contains an explanatory paragraph that states that
NDSI's wholly owned subsidiary, Dryvit Systems, Inc., has experienced rust
related warranty expense arising from prior years sales. No reasonable
estimate of unreported claims could be made at December 31, 1994 and
accordingly, the financial statements do not include any adjustments relating
to the outcome of this uncertainty. The consolidated financial statements
referred to above are incorporated herein by reference in reliance upon such
reports and upon the authority of such firms as experts in accounting and
auditing.
57
<PAGE> 61
<TABLE>
<CAPTION>
=================================================== ===================================================
<S> <C>
No person is authorized in connection with any
offering made hereby to give any information or to
make any representation not contained in this
Prospectus and, if given or made, such information
or representation must not be relied upon as
having been authorized by the Company. This
Prospectus does not constitute an offer to sell or
a solicitation of an offer to buy any security
other than the Notes offered hereby, nor does it
constitute an offer to sell or a solicitation of
an offer to buy any of the Notes to any person in
any jurisdiction in which it is unlawful to make
such an offer or solicitation to such person.
Neither the delivery of this Prospectus or the
accompanying Letter of Transmittal nor any sale [RPM, INC. LOGO]
made hereunder shall under any circumstances
create any implication that the information
contained herein is correct as of any date
subsequent to the date hereof.
____________________
TABLE OF CONTENTS
Page
----
AVAILABLE INFORMATION . . . . . . . . . . . . 4 Offer to Exchange
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE 5 its
PROSPECTUS SUMMARY . . . . . . . . . . . . . 6 7.0% Senior Notes Due 2005
ACQUISITION OF NARRAGANSETT/DSI ACQUISITION CO., ($150,000,000 principal amount
INC. AND ITS WHOLLY OWNED SUBSIDIARY DRYVIT outstanding)
SYSTEMS, INC. . . . . . . . . . . . . . . 15 for 7.0% Senior Exchange Notes
THE COMPANY . . . . . . . . . . . . . . . . . 15 Due 2005
BUSINESS . . . . . . . . . . . . . . . . . . 15
RISK FACTORS . . . . . . . . . . . . . . . . 18 ($150,000,000 principal amount
THE EXCHANGE OFFER . . . . . . . . . . . . . 20 outstanding)
USE OF PROCEEDS . . . . . . . . . . . . . . . 32
CAPITALIZATION . . . . . . . . . . . . . . . 32
SELECTED FINANCIAL INFORMATION . . . . . . . 34
DESCRIPTION OF NOTES . . . . . . . . . . . . 35
DESCRIPTION OF OLD NOTES . . . . . . . . . . 51
CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES . . . . . . . . . . . . . . . 52 _________________
PLAN OF DISTRIBUTION . . . . . . . . . . . . 54
DESCRIPTION OF CAPITAL STOCK . . . . . . . . 54 OFFER TO EXCHANGE --
LEGAL MATTERS . . . . . . . . . . . . . . . . 56 PROSPECTUS
INDEPENDENT PUBLIC ACCOUNTANTS . . . . . . . 57 _________________
______________________ _____________, 1995
=================================================== ===================================================
</TABLE>
<PAGE> 62
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
-----------------------------------------
Ohio Revised Code Section 1701.13(E) and Article VI of Registrant's
Amended Code of Regulations (incorporated herein by reference as Exhibit 3.2)
provide for indemnification of Directors and officers against certain
liabilities.
The Registrant has purchased a Directors and Officers Liability
Insurance Policy (incorporated herein by reference as Exhibit 99.1).
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
incorporated herein by reference and is filed as Exhibit 99.2 to this
Registration Statement.
Reference is made to Section 5 of the Registration Rights Agreement
(Exhibit 4.6 to the Registration Statement) which provides indemnification to
the Registrant's officers, Directors and controlling persons against certain
civil liabilities, including liabilities under the Securities Act.
Item 21. Exhibits and Financial Statement Schedules.
------------------------------------------
(a) EXHIBITS. See the Exhibit Index at page E-1 of this
Registration Statement.
(b) FINANCIAL STATEMENT SCHEDULES. The financial statement
schedules required by this item are incorporated by reference from the
Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1994.
II-1
<PAGE> 63
Item 22. Undertakings.
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during the period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(A) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(B) 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;
(C) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (1)(A) and 1(B) 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.
(2) 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.
(3) 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.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to 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.
(c) The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the prospectus
pursuant to Items 4, 10(b), 11, or 13 of this Form within one business day of
receipt of such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the registration statement
through the date of responding to the request.
(d) The undersigned registrant hereby undertakes to supply by
means of a post-effective amendment all information concerning a transaction,
and the company being acquired involved therein, that was not the subject of
and included in the registration statement when it became effective.
II-2
<PAGE> 64
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused Amendment No. 2 to 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 6th day of October, 1995.
RPM, Inc.
By /s/ Thomas C. Sullivan
--------------------------------
Thomas C. Sullivan, Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
Amendment No. 2 to this Registration Statement has been signed by the following
persons in the capacities indicated and on the 6th day of October, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Thomas C. Sullivan Chairman of the Board of
- ------------------------------------- Directors and Chief Executive Officer (principal
Thomas C. Sullivan executive officer)
/s/ James A. Karman President, Chief Operating
- --------------------------------------
James A. Karman Officer and Director
/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
/s/ Max D.Amstutz* Director
- ---------------------------------------
Max D. Amstutz
/s/ Edward B. Brandon* Director
- --------------------------------------
Edward B. Brandon
/s/ Lorrie Gustin* Director
- ------------------------------------------
Lorrie Gustin
</TABLE>
II-3
<PAGE> 65
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Roy H. Holdt* Director
- ----------------------------------------
Roy H. Holdt
/s/ E. Bradley Jones* 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
<FN>
* The undersigned, by signing his name hereto, does hereby sign this Amendment
No. 2 to this Registration Statement on behalf of the above- named Directors
and executive officers of RPM, Inc. pursuant to a Power of Attorney executed on
behalf of each of such Directors and executive officers and which has been
filed with the Securities and Exchange Commission.
By/s/ Thomas C. Sullivan
- ------------------------
Thomas C. Sullivan, Attorney-in-Fact
</TABLE>
II-4
<PAGE> 66
Exhibit 23.1
CONSENT OF
INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of our report
dated July 7, 1995 which appears in the Annual Report on Form 10-K for the
fiscal year ended May 31, 1995 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 "INDEPENDENT PUBLIC
ACCOUNTANTS" in the Prospectus.
/s/ CIULLA STEPHENS & CO.
CIULLA STEPHENS & CO.
Cleveland, Ohio
October 5, 1995
II-5
<PAGE> 67
Exhibit 23.2
CONSENT OF
INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Prospectus constituting
part of this Amendment No. 2 to Registration Statement on Form S-4 of our
report dated February 28, 1995 which appears in the Current Report on Form 8-K,
dated July 24, 1995, of RPM, Inc. and to the reference to our firm made under
the heading "INDEPENDENT PUBLIC ACCOUNTANTS" in the Prospectus.
Our report dated February 28, 1995 contains an explanatory paragraph that
states that Narragansett/DSI Acquisition Co., Inc.'s wholly owned subsidiary,
Dryvit Systems, Inc., has experienced rust related warranty expense arising
from prior years sales. Dryvit Systems, Inc. has made provision for reported
claims; however, no provision has been made for unreported claims as they
cannot be reasonably estimated. Accordingly, no additional provision for any
liability that may result has been recognized in the financial statements.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Providence, Rhode Island
October 5, 1995
II-6
<PAGE> 68
Exhibit 23.3
CONSENT OF COUNSEL
The consent of Calfee, Halter & Griswold is contained in their opinion
filed as Exhibit 5.1 to this Registration Statement.
II-7
<PAGE> 69
Exhibit 23.4
CONSENT OF COUNSEL
The consent of Brown & Wood is contained in their opinion filed as
Exhibit 5.2 to this Registration Statement.
II-8
<PAGE> 70
<TABLE>
RPM, INC.
Exhibit Index
-------------
<CAPTION>
Sequential
----------
Description Page
----------- ----
Exhibit No.
-----------
<S> <C> <C>
3.1 Amended Articles of Incorporation, as amended . . . . . . . . . . . . . . . (A)(B)(C)
3.2 Amended Code of Regulations . . . . . . . . . . . . . . . . . . . . . . . . (D)
4.1 Specimen Certificate of Common Shares, without par value, of RPM, Inc. . . (E)
4.2 Specimen LYONs Certificate . . . . . . . . . . . . . . . . . . . . . . . . (C)
4.3 Specimen Note Certificate for New Notes . . . . . . . . . . . . . . . . . . *
4.4 Specimen Note Certificate for Old Notes . . . . . . . . . . . . . . . . . . *
4.5 Indenture, dated as of June 1, 1995, between RPM, Inc. and The First
National Bank of Chicago, as Trustee . . . . . . . . . . . . . . . . . . . *
4.6 Registration Rights Agreement, dated as of June 20, 1995, among RPM, Inc.,
Chase Securities, Inc. and Bear, Stearns & Co. Inc. . . . . . . . . . . . . *
5.1 Opinion of Calfee, Halter & Griswold as to the validity of the Notes . . . *
5.2 Opinion of Brown & Wood as to the validity of the Notes . . . . . . . . . . *
23.1 Consent of Ciulla Stephens & Co. (See page II-5 of this Registration
Statement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23.2 Consent of KPMG Peat Marwick LLP. (See page II-6 of this Registration
Statement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23.3 Consent of Calfee, Halter & Griswold. (See page II-7 of this Registration
Statement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23.4 Consent of Brown & Wood. (See page II-8 of this Registration Statement) .
24.1 Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . *
25.1 Form T-1 Statement of Eligibility of The First National Bank of Chicago . . *
99.1 Executive Risk Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . (F)
99.2 Form of Indemnification Agreement entered into by and between the Company
and each of its Directors and Executive Officers . . . . . . . . . . . . . (G)
99.3 Plan and Agreement of Merger among RPM, Inc., Narragansett/DSI Acquisition
Co., Inc. ("NDSI") and NDSI's securityholders. . . . . . . . . . . . . . . (H)
99.4 Form of Letter of Transmittal . . . . . . . . . . . . . . . . . . . . . . .
99.5 Form of Notice of Guaranteed Delivery . . . . . . . . . . . . . . . . . . .
99.6 Form of Exchange Agent Agreement . . . . . . . . . . . . . . . . . . . . .
99.7 Acceleration Request . . . . . . . . . . . . . . . . . . . . . . . . . . .
<FN>
- ---------------------
* Previously filed
</TABLE>
E-1
<PAGE> 71
(A) Incorporated herein by reference to the appropriate
exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1984.
(B) Incorporated herein by referenced to the appropriate
exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1987.
(C) Incorporated herein by reference to the appropriate
exhibit to the Company's Form S-3 Registration Statement (Reg. No. 33-50868).
(D) Incorporated herein by reference to the appropriate
exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1988.
(E) Incorporated herein by reference to the appropriate
exhibit to the Company's Registration Statement on Form S-3 (Reg. No.
33-39849).
(F) Incorporated herein by reference to the appropriate
exhibit to the Company'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 Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1991.
(H) Incorporated herein by reference to the appropriate
exhibit to the Company's Current Report on Form 8-K, dated July 24, 1995.
E-2
<PAGE> 1
EXHIBIT 99.4
LETTER OF TRANSMITTAL ------------
RPM, INC.
Offer to Exchange its
7.0% Notes Due 2005
which have been registered under the Securities Act of 1933
for any and all of its outstanding
7.0% Notes Due 2005
Pursuant to the Prospectus
dated October 10, 1995
--------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON NOVEMBER 10, 1995, UNLESS THE OFFER IS EXTENDED
--------------------------
The Exchange Agent for the Exchange Offer is:
THE FIRST NATIONAL BANK OF CHICAGO
<TABLE>
<S> <C>
BY MAIL: BY OVERNIGHT DELIVERY OR HAND:
The First National Bank of Chicago The First National Bank of Chicago
c/o First Chicago Trust Company of New York c/o First Chicago Trust Company of New York
Attn: Corporate Trust Administration Attn: Corporate Trust Administration
14 Wall Street 14 Wall Street
8th Floor, Window 2 8th Floor, Window 2
New York, NY 10005 New York, NY 10005
</TABLE>
To Confirm by Telephone or for Information:
(212) 240-8862
Facsimile Transmissions:
(212) 240-8938
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A NUMBER
OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS LETTER
OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same meaning
given them in the Prospectus (as defined below).
This Letter of Transmittal is to be completed by holders of Old Notes (as
defined below) either if Old Notes are to be forwarded herewith or if tenders
of Old Notes are to be made by book-entry transfer to an account maintained by
The First National Bank of Chicago (the "Exchange Agent") at The Depository
Trust Company ("DTC") pursuant to the procedures set forth in "The Exchange
Offer - Procedures for Tendering Old Notes" in the Prospectus.
Holders of Old Notes whose certificates (the "Certificates") for such Old
Notes are not immediately available or who cannot deliver their Certificates
and all other required document to the Exchange Agent on or prior to the
Expiration Date (as defined in the Prospectus) or who cannot complete the
procedures for book-entry transfer on a timely basis, must tender their Old
Notes according to the guaranteed delivery procedures set forth in "The
Exchange Offer - Guaranteed Delivery Procedures" in the Prospectus. See
Instruction 1. Delivery of documents to DTC does not constitute delivery to
the Exchange Agent.
<PAGE> 2
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
ALL TENDERING HOLDERS COMPLETE THIS BOX:
<TABLE>
<CAPTION>
========================================================================================================================
DESCRIPTION OF OLD NOTES TENDERED
- ------------------------------------------------------------------------------------------------------------------------
If blank, please print name and address of Old Notes tendered
registered holders (Attach additional list if necessary)
- ------------------------------------------------------------------------------------------------------------------------
Principal Amount of
Certificate Principal Old
Number(s)* Amount Notes Tendered (if
of Old Notes less than all)**
- ------------------------------------------------------------------------------------------------------------------------
<S> <C>
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
TOTAL AMOUNT
TENDERED:
<FN>
* Need not be completed by book-entry holders.
** Old Notes may be tendered in whole or in part in denominations of
$1,000 and integral multiples thereof, provided that if any Old Notes
are tendered for exchange in part, the untendered principal amount
thereof must be $250,000 or any integral multiple of $1,000 in excess
thereof. All Old Notes held shall be deemed tendered unless a lesser
number is specified in this column.
========================================================================================================================
</TABLE>
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC
AND COMPLETE THE FOLLOWING:
Name of Tendering Institution ___________________________________________
DTC Account Number ______________________________________________________
Transaction Code Number _________________________________________________
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY
IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE
THE FOLLOWING:
Name of Registered Holder(s) ____________________________________________
Window Ticket Number (if any) ___________________________________________
Date of Execution of Notice of Guaranteed Delivery ______________________
Name of Institution which Guaranteed Delivery ___________________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution _________________________________________
DTC Account Number ____________________________________________________
Transaction Code Number _______________________________________________
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD NOTES
ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD NOTES FOR ITS
OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10 ADDITIONAL COPIES
OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name ____________________________________________________________________
Address: ________________________________________________________________
_________________________________________________________________
2
<PAGE> 3
Ladies and Gentlemen:
The undersigned hereby tenders to RPM, Inc., an Ohio corporation (the
"Company"), the above described aggregate principal amount of the Company's
7.0% Notes due 2005 (the "Old Notes") in exchange for a like aggregate
principal amount of the Company's 7.0% Notes Due 2005 (the "New Notes") which
have been registered under the Securities Act of 1933 (the "Securities Act"),
upon the terms and subject to the conditions set forth in the Prospectus dated
October 10, 1995 (as the same may be amended or supplemented from time to time,
the "Prospectus"), receipt of which is acknowledged, and in this Letter of
Transmittal (which, together with the Prospectus, constitute the "Exchange
Offer").
Subject to and effective upon the acceptance for exchange of all or
any portion of the Old Notes tendered herewith in accordance with the terms and
conditions of the Exchange Offer (including, if the Exchange Offer is extended
or amended, the terms and conditions of any such extension or amendment), the
undersigned hereby sells, assigns and transfers to or upon the order of the
Company all right, title and interest in and to such Old Notes as are being
tendered herewith. The undersigned hereby irrevocably constitutes and appoints
the Exchange Agent as its agent and attorney-in-fact (with full knowledge that
the Exchange Agent is also acting as agent of the Company in connection with
the Exchange Offer) with respect to the tendered Old Notes, with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), subject only to the right of withdrawal described in
the Prospectus, to (i) deliver Certificates for Old Notes to the Company
together with all accompanying evidences of transfer and authenticity to, or
upon the order of, the Company, upon receipt by the Exchange Agent, as the
undersigned's agent, of the New Notes to be issued in exchange for such Old
Notes, (ii) present Certificates for such Old Notes for transfer, and to
transfer the Old Notes on the books of the Company, and (iii) receive for the
account of the Company all benefits and otherwise exercise all rights of
beneficial ownership of such Old Notes, all in accordance with the terms and
conditions of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to tender, exchange, sell, assign and transfer the
Old Notes tendered hereby and that, when the same are accepted for exchange,
the Company will acquire good, marketable and unencumbered title thereto, free
and clear of all liens, restrictions, charges and encumbrances, and that the
Old Notes tendered hereby are not subject to any adverse claims or proxies.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company or the Exchange Agent to be necessary or
desirable to complete the exchange, assignment and transfer of the Old Notes
tendered hereby, and the undersigned will comply with its obligations under the
Registration Rights Agreement. The undersigned has read and agrees to all of
the terms of the Exchange Offer.
The name(s) and address(es) of the registered holder(s) of the Old
Notes tendered hereby should be printed above, if they are not already set
forth above, as they appear on the Certificates representing such Old Notes.
The Certificate number(s) and the Old Notes that the undersigned wishes to
tender should be indicated in the appropriate boxes above.
3
<PAGE> 4
If any tendered Old Notes are not exchanged pursuant to the Exchange
Offer for any reason, or if Certificates are submitted for more Old Notes than
are tendered or accepted for exchange, Certificates for such nonexchanged or
nontendered Old Notes will be returned (or, in the case of Old Notes tendered
by book-entry transfer, such Old Notes will be credited to an account
maintained at DTC), without expense to the tendering holder, promptly following
the expiration or termination of the Exchange Offer.
The undersigned understands that tenders of Old Notes pursuant to any
one of the procedures described in "The Exchange Offer - Procedures for
Tendering Old Notes" in the Prospectus and in the instructions hereto will,
upon the Company's acceptance for exchange of such tendered Old Notes,
constitute a binding agreement between the undersigned and the Company upon the
terms and subject to the conditions of the Exchange Offer. The undersigned
recognizes that, under certain circumstances set forth in the Prospectus, the
Company may not be required to accept for exchange any of the Old Notes
tendered hereby.
Unless otherwise indicated herein in the box entitled "Special
Issuance Instructions" below, the undersigned hereby directs that the New Notes
be issued in the name(s) of the undersigned or, in the case of a book-entry
transfer of Old Notes, that such New Notes be credited to the account indicated
above maintained at DTC. If applicable, substitute Certificates representing
Old Notes not exchanged or not accepted for exchange will be issued to the
undersigned or, in the case of a book-entry transfer of Old Notes, will be
credited to the account indicated above maintained at DTC. Similarly, unless
otherwise indicate under "Special Delivery Instructions," please deliver New
Notes to the undersigned at the address shown below the undersigned's
signature.
By tendering Old Notes and executing this Letter of Transmittal, the
undersigned hereby represents and agrees that (i) the undersigned is not an
"affiliate" of the Company, (ii) any New Notes to be received by the
undersigned are being acquired in the ordinary course of its business, (iii)
the undersigned has no arrangement or understanding with any person to
participate in a distribution (within the meaning of the Securities Act) of New
Notes to be received in the Exchange Offer, and (iv) if the undersigned is not
a broker-dealer, the undersigned is not engaged in, and does not intend to
engage in, a distribution (within the meaning of the Securities Act) of such
New Notes. By tendering Old Notes pursuant to the Exchange Offer and executing
this Letter of Transmittal, a holder of Old Notes which is a broker-dealer
represents and agrees, consistent with certain interpretive letters issued by
the Staff of the Division of Corporation Finance of the Securities and Exchange
Commission to third parties, that (a) such Old Notes held by the broker-dealer
are held only as a nominee, or (b) such Old Notes were acquired by such
broker-dealer for its own account as a result of market-making activities or
other trading activities and it will deliver the Prospectus (as amended or
supplemented from time to time) meeting the requirements of the Securities Act
in connection with any resale of such New Notes (provided that, by so
acknowledging and by delivering a Prospectus, such broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act).
4
<PAGE> 5
The Company has agreed that, subject to the provisions of the
Registration Rights Agreement, the Prospectus, as it may be amended or
supplemented from time to time, may be used by a Participating Broker-Dealer
(as defined below) in connection with resales of New Notes received in exchange
for Old Notes, where such Old Notes were acquired by such Participating
Broker-Dealer for its own account as a result of market-making activities or
other trading activities, for a period ending 90 days after the Expiration Date
(subject to extension under certain limited circumstances described in the
Prospectus) or, if earlier, when all such New Notes have been disposed of by
such Participating Broker- Dealer. In that regard, each broker-dealer who
acquired Old Notes for its own account as a result of market-making or other
trading activities (a "Participating Broker-Dealer"), by tendering such Old
Notes and executing this Letter of Transmittal, agrees that, upon receipt of
notice from the Company of the occurrence of any event or the discovery of any
fact which makes any statement contained or incorporated by reference in the
Prospectus untrue in any material respect or which causes the Prospectus to
omit to state a material fact necessary in order to make the statements
contained or incorporated by reference therein, in light of the circumstances
under which they were made, not misleading or of the occurrence of certain
other events specified in the Registration Rights Agreement, such Participating
Broker-Dealer will suspend the sale of New Notes pursuant to the Prospectus
until the Company has amended or supplemented the Prospectus to correct such
misstatement or omission and has furnished copies of the amended or
supplemented Prospectus to the Participating Broker-Dealer or the Company has
given notice that the sale of the New Notes may be resumed, as the case may be.
If the Company gives such notice to suspend the sale of the New Notes, it shall
extend the 90-day period referred to above during which Participating
Broker-Dealers are entitled to use the Prospectus in connection with the resale
of New Notes by the number of days during the period from and including the
date of the giving of such notice to and including the date when Participating
Broker-Dealers shall have received copies of the supplemented or amended
Prospectus necessary to permit resales of the New Notes or to and including the
date on which the Company has given notice that the sale of New Notes may be
resumed, as the case may be.
Holders of Old Notes whose Old Notes are accepted for exchange will
not receive accrued interest on such Old Notes for any period from and after
the last Interest Payment Date to which interest has been paid or duly provided
for on such Old Notes prior to the original issue date of the New Notes or, if
no such interest has been paid or duly provided for, will not receive any
accrued interest on such Old Notes, and the undersigned waives the right to
receive any interest on such Old Notes accrued from and after such Interest
Payment Date or, if no such interest has been paid or duly provided for, from
and after June 1, 1995.
All authority herein conferred or agreed to be conferred in this
Letter of Transmittal shall survive the death or incapacity of the undersigned
and any obligation of the undersigned hereunder shall be binding upon the
heirs, executors, administrators, personal representatives, trustees in
bankruptcy, legal representatives, successors and assigns of the undersigned.
Except as stated in the Prospectus, this tender is irrevocable.
5
<PAGE> 6
HOLDERS SIGN HERE
(See Instructions 2, 5 and 6)
(Please Complete Substitute Form W-9 Below)
(Note: Signature(s) must be guaranteed if required by Instruction 2)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Old Notes hereby tendered or on a security position
listing, or by any person(s) authorized to become the registered holder(s) by
endorsements and documents transmitted herewith (including such opinions of
counsel, certifications and other information as may be required by the Company
or the Trustee for the Old Notes to comply with the restrictions on transfer
applicable to the Old Notes). If signature is by an attorney-in-fact,
executor, administrator, trustee, guardian, officer of a corporation or another
acting in a fiduciary capacity or representative capacity, please set forth the
signer's full title. See Instruction 5.
_______________________________________________________________________________
(Signature(s) of Holder(s))
Date ____________, 1995
Name(s)________________________________________________________________________
(Please Print)
Address________________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number_________________________________________________
_______________________________________________________________________________
(Tax Identification or Social Security Number(s))
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 2 AND 5)
Authorized Signature___________________________________________________________
Name___________________________________________________________________________
(Please Print)
Date ____________, 1995
Capacity or Title______________________________________________________________
Name of Firm___________________________________________________________________
Address________________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number_________________________________________________
6
<PAGE> 7
<TABLE>
<CAPTION>
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6) (SEE INSTRUCTIONS 1, 5 AND 6)
<S> <C>
To be completed ONLY if the New Notes are to be To be completed ONLY if New Notes are to be
issued in the name of someone other than the sent to someone other than the registered
registered holder of the Old Notes whose name(s) holder of the Old Notes whose name(s) appear(s)
appear(s) above. above, or to such registered holder(es) at an
address other than that shown above.
Issue New Notes to:
Mail New Notes to:
Name
----------------------------------------------
(Please Print) Name
--------------------------------------------
(Please Print)
Address
-------------------------------------------
Address
-----------------------------------------
--------------------------------------------------
------------------------------------------------
--------------------------------------------------
(Include Zip Code)
------------------------------------------------
(Include Zip Code)
--------------------------------------------------
(Taxpayer Identification or Social Security No.)
------------------------------------------------
(Taxpayer Identification or Social Security
No.)
</TABLE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED
DELIVERY PROCEDURES. This Letter of Transmittal is to be completed either if
(a) Certificates are to be forwarded herewith or (b) tenders are to be made
pursuant to the procedures for tender by book- entry transfer set forth in "The
Exchange Offer - Procedure for Tendering Old Notes" in the Prospectus.
Certificates, or timely confirmation of a book-entry transfer of such Old Notes
into the Exchange Agent's account at DTC, as well as this Letter of Transmittal
(or facsimile thereof), properly completed and duly executed, with any required
signature guarantees, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at its address set forth
herein on or prior to the Expiration Date. Old Notes may be tendered in whole
or in part in the principal amount of $1,000 and integral multiples of $1,000,
provided that, if any Old Notes are tendered for exchange in part, the
untendered principal amount thereof must be $250,000 or any integral multiple
of $1,000 in excess thereof.
Holders who wish to tender their Old Notes and (i) whose Old Notes are
not immediately available or (ii) who cannot deliver their Old Notes, this
Letter of Transmittal and all other required documents to the Exchange Agent on
or prior to the Expiration Date or (iii) who cannot complete the procedures for
delivery by book-entry transfer on a timely basis, may tender their Old Notes
by properly completing and duly executing a Notice of Guaranteed Delivery
pursuant to the guaranteed delivery procedures set forth in "The Exchange Offer
- - Guaranteed Delivery
7
<PAGE> 8
Procedures" in the Prospectus. Pursuant to such procedures: (i) such tender
must be made by or through an Eligible Institution (as defined below); (ii) a
properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form made available by the Company, must be received by
the Exchange Agent on or prior to the Expiration Date; and (iii) the
Certificates (or a book-entry confirmation (as defined in the Prospectus))
representing all tendered Old Notes, in proper form for transfer, together with
a Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
within three business days after the Expiration Date, all as provided in "The
Exchange Offer - Guaranteed Delivery Procedures" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by facsimile or mail to the Exchange Agent, and must include a
guarantee by an Eligible Institution in the form set forth in such Notice. For
Old Notes to be properly tendered pursuant to the guaranteed delivery
procedure, the Exchange Agent must receive a Notice of Guaranteed Delivery on
or prior to the Expiration Date. As used herein and in the Prospectus,
"Eligible Institution" means a firm or other entity identified in Rule 17Ad-15
under the Exchange Act as "an eligible guarantor institution," including (as
such terms are defined therein) (i) a bank; (ii) a broker, dealer, municipal
securities broker or dealer or government securities broker or dealer; (iii) a
credit union; (iv) a national securities exchange, a registered securities
association or clearing agency; or (v) a savings association that is a
participant in a Securities Transfer Association.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING HOLDER
AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering holder, by execution of a Letter of Transmittal (or
facsimile thereof), waives any right to receive any notice of the acceptance of
such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this
Letter of Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered
holder (which term, for purposes of this document, shall include any
participant in DTC whose name appears on a security position listing
as the owner of the Old Notes) of Old Notes tendered herewith, unless
such holder(s) has completed either the box entitled "Special Issuance
Instructions" or the box entitled "Special Delivery Instructions"
above, or
(ii) such Old Notes are tendered for the account of a firm
that is an Eligible Institution.
8
<PAGE> 9
In all other cases, an Eligible Institution must guarantee the
signature(s) on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Notes" is inadequate, the Certificate number(s) and/or the
principal amount of Old Notes and any other required information should be
listed on a separate signed schedule which is attached to this Letter of
Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Notes
will be accepted only in the principal amount of $1,000 and integral multiples
thereof, provided that if any Old Notes are tendered for exchange in part, the
untendered principal amount thereof must be $250,000 or any integral multiple
of $1,000 in excess thereof. If less than all the Old Notes evidenced by any
certificate submitted are to be tendered, fill in the principal amount of Old
Notes which are to be tendered in the box entitled "Principal Amount of Old
Notes Tendered (if less than all)." In such case, new Certificate(s) for the
remainder of the Old Notes that were evidenced by your Certificate(s) will only
be sent to the holder of the Old Note, promptly after the Expiration Date. All
Old Notes represented by Certificates delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Notes may be
withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective on or prior to that time, a written, telegraphic
telex or facsimile transmission of such notice of withdrawal must be timely
received by the Exchange Agent at one of its addresses set forth above or in
the Prospectus on or prior to the Expiration Date. Any such notice of
withdrawal must specify the name of the person who tendered the Old Notes to be
withdrawn, the aggregate principal amount of Old Notes to be withdrawn, and (if
Certificates for Old Notes have been tendered) the name of the registered
holder of the Old Notes as set forth on the Certificate of the Old Notes, if
different from that of the person who tendered such Old Notes. If Certificates
for the Old Notes have been delivered or otherwise identified to the Exchange
Agent, then prior to the physical release of such Certificates for the Old
Notes, the tendering holder must submit the serial numbers shown on the
particular Certificates for the Old Notes to be withdrawn and the signature on
the notice of withdrawal must be guaranteed by an Eligible Institution, except
in the case of Old Notes tendered for the account of an Eligible Institution.
If Old Notes have been tendered pursuant to the procedures of book-entry
transfer set forth in "The Exchange Offer - Procedures for Tendering Old
Notes," the notice of withdrawal must specify the name and number of the
account at DTC to be credited with the withdrawal of Old Notes, in which case a
notice of withdrawal will be effective if delivered to the Exchange Agent by
written, telegraphic, telex or facsimile transmission. Withdrawals of tenders
of Old Notes may not be rescinded. Old Notes properly withdrawn will not be
deemed validly tendered for purposes of the Exchange Offer, but may be
retendered at any subsequent time on or prior to the Expiration Date by
following any of the procedures described in the Prospectus under "The Exchange
Offer - Procedure for Tendering Old Notes."
All questions as to the validity, form and eligibility (including time
of receipt) of such withdrawal notices will be determined by the Company, in
its sole discretion, whose
9
<PAGE> 10
determination shall be final and binding on all parties. Neither the Company,
any affiliates or assigns of the Company, the Exchange Agent nor any other
person shall be under any duty to give any notification of any irregularities
in any notice of withdrawal or incur any liability for failure to give any such
notification. Any Old Notes which have been tendered but which are withdrawn
will be returned to the holder thereof without cost to such holder promptly
after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND
ENDORSEMENTS. If this Letter of Transmittal is signed by the registered
holder(s) of the Old Notes tendered hereby, the signature(s) must corresponded
exactly with the name(s) as written on the face of the Certificate(s) without
alteration, enlargement or any change whatsoever.
If any of the Old Notes tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Old Notes are registered in different name(s) on
several Certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal (or facsimiles thereof) as there are different
registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and must submit proper
evidence satisfactory to the Company, in its sole discretion, of such persons'
authority to so act.
When this Letter of Transmittal is signed by the registered owner(s)
of the Old Notes listed and transmitted hereby, no endorsement(s) of
Certificate(s) or separate bond power(s) are required unless New Notes are to
be issued in the name of a person other than the registered holder(s).
Signature(s) on such Certificate(s) or bond power(s) must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Old Notes listed, the Certificates must be endorsed
or accompanied by appropriate bond powers, signed exactly as the name or names
of the registered owner(s) appear(s) on the Certificates, and also must be
accompanied by such opinions of counsel, certifications and other information
as the Company or the Trustee for the Old Notes may require in accordance with
the restrictions on transfer applicable to the Old Notes. Signatures on such
certificates or bond powers must be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Notes are
to be issued in the name of a person other than the signer of this Letter of
Transmittal, or if New Notes are to be sent to someone other than the signer of
this Letter of Transmittal or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed.
Certificates for Old Notes not exchanged will be returned by mail or, if
tendered by book-entry transfer, by crediting the account indicated above
maintained at DTC. See Instruction 4.
10
<PAGE> 11
7. IRREGULARITIES. The Company will determine, in its sole
discretion, all questions as to the form of documents, validity, eligibility
(including time of receipt) and acceptance for exchange of any tender of Old
Notes, which determination shall be final and binding on all parties. The
Company reserves the absolute right to reject any and all tenders determined by
it not to be in proper form for the acceptance of which, or exchange for, may,
in the view of counsel to the Company, be unlawful. The Company also reserves
the absolute right, subject to applicable law, to waive any conditions or
irregularity in any tender of Old Notes of any particular holder whether or not
similar conditions or irregularities are waived in the case of other holders.
The Company's interpretation of the terms and conditions of the
Exchange Offer (including this Letter of Transmittal and the instructions
hereto) will be final and binding. No tender of Old Notes will be deemed to
have been validly made until all irregularities with respect to such tender
have been cured or waived. Neither the Company, any affiliates or assigns of
the Company, the Exchange Agent, nor any other person shall be under any duty
to give notification of any irregularities in tenders or incur any liability
for failure to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES.
Questions and requests for assistance may be directed to the Exchange Agent at
its address and telephone number set forth on the front of this Letter of
Transmittal. Additional copies of the Prospectus, the Notice of Guaranteed
Delivery and the Letter of Transmittal may be obtained from the Exchange Agent
or from your broker, dealer, commercial bank, trust company or other nominee.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S.
Federal income tax law, a holder whose tendered Old Notes are accepted for
exchange is required to provide the Exchange Agent with such holder's correct
taxpayer identification number ("TIN") on Substitute Form W-9 below. If the
Exchange Agent is not provided with the correct TIN, the Internal Revenue
Service (the "IRS") may subject the holder or other payee to a $50 penalty. In
addition, payments to such holders or other payees with respect to Old Notes
exchanged pursuant to the Exchange Offer may be subject to 31% backup
withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the
tendering holder has not been issued a TIN and has applied for a TIN or intends
to apply for a TIN in the near future. If the box in Part 2 is checked, the
holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60 day period following the date of the Substitute Form
W-9. If the holder furnishes the Exchange Agent with its TIN within 60 days
after the date of the Substitute Form W-9, the amounts retained during the 60
day period will be remitted to the holder and no further amounts shall be
retained or withheld from payments made to the holder thereafter. If, however,
the holder has not provided the
11
<PAGE> 12
Exchange Agent with its TIN within such 60 day period, amounts withheld will be
remitted to the IRS as backup withholding. In addition, 31% of all payments
made thereafter will be withheld and remitted to the IRS until a correct TIN is
provided.
The holder is required to give the Exchange Agent the TIN (e.g.,
social security number or employer identification umber) of the registered
owner of the Old Notes or of the last transferee appearing on the transfers
attached to, or endorsed on, the Old Notes. If ;the Old Notes are registered
in more than one name or are not in the name of the actual owner, consult the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional guidance on which number to report.
Certain holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the face
thereof, to avoid possible erroneous backup withholding. A foreign person may
qualify as an exempt recipient by submitting a properly competed IRS Form W-8,
signed under penalties of perjury, attesting to that holder's exempt status.
Please consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
holders are exempt from backup withholding.
Backup withholding is not an additional U.S. Federal income tax.
Rather, the U.S. Federal income tax liability of a person subject to backup
withhold will be reduced by the amount of tax withheld. If withholding results
in an overpayment of taxes, a refund may be obtained.
10. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Old Notes have been lost, destroyed or stolen, the holder should
promptly notify the Exchange Agent. The holder will then be instructed as to
the steps that must be taken in order to replace the Certificate(s). This
Letter of Transmittal and related documents cannot be processed until the
procedures for replacing lost, destroyed or stolen Certificate(s) have been
followed.
11. SECURITY TRANSFER TAXES. Holders who tender their Old Notes
for exchange will not be obligated to pay any transfer taxes in connection
therewith. If, however, New Notes are to be delivered to, or are to be issued
in the name of, any person other than the registered holder of the Old Notes
tendered, or if a transfer tax is imposed for any reason other than the
exchange of Old Notes in connection with the Exchange Offer, then the amount of
any such transfer tax (whether imposed on the registered holder or any other
persons) will be payable by the tendering holder. If satisfactory evidence of
payment of such taxes or exemption therefrom is not submitted with the Letter
of Transmittal, the amount of such transfer taxes will be billed directly to
such tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL
OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO
THE EXPIRATION DATE.
12
<PAGE> 13
<TABLE>
TO BE COMPLETED BY ALL
TENDERING SECURITYHOLDERS
(SEE INSTRUCTION 9)
PAYER'S NAME: THE FIRST NATIONAL BANK OF CHICAGO
<CAPTION>
SUBSTITUTE Part 1 - PLEASE PROVIDE YOUR TIN
TIN IN THE BOX AT RIGHT AND ------------------------------------
Form W-9 CERTIFY BY SIGNING AND DATING Social Security Number or
BELOW Employer Identification Number
<S> <C>
Department of the Treasury Part 2
Internal Revenue Service Awaiting TIN [ ]
CERTIFICATION - UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT (1) the
number shown on this form is my correct taxpayer identification number (or
I am waiting for a number to be issued to me), (2) I am not subject to
backup withholding either because (i) I am exempt from backup withholding,
(ii) I have not been notified by the Internal Revenue Service ("IRS") that
I am subject to backup withholding has a result of a failure to report all
interest or dividends, or (iii) the IRS has notified me that I am no
longer subject to backup withholding, and (3) any other information
provided on this form is true and correct.
Payer's Request for Taxpayer SIGNATURE
Identification Number (TIN) -----------------------------------------------------------------
and Certification
DATE
----------------------------------------------------------------------
You must cross out item (iii) in Part (2) above if you have been notified
by the IRS that you are subject to backup withholding because of
underreporting interest or dividends on your tax return and you have not
been notified by the IRS that you are no longer subject to backup
withholding.
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU
PURSUANT TO THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(2) I intend to mail or deliver an application in the near future. In
understand that if I do not provide a taxpayer identification number by the
time of payment, 31% of all payments made to me on account of the New Notes
shall be retained until I provide a taxpayer identification number to the
Exchange Agent and that, if I do not provide my taxpayer identification
number within 60 days, such retained amounts shall be remitted to the
Internal Revenue Service as backup withholding and 31% of all reportable
payments made to me thereafter will be withheld and remitted to the Internal
Revenue Service until I provide a taxpayer identification number.
Signature______________________________ Date_____________________________
13
<PAGE> 1
EXHIBIT 99.5
NOTICE OF GUARANTEED DELIVERY ------------
FOR TENDER OF
7.00% SENIOR NOTES DUE 2005
OF
RPM, INC.
The Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer (as defined below) if (i)
certificates of the Company's (as defined below) 7.0% Senior Notes Due 2005
(the "Old Notes") are not immediately available, (ii) Old Notes, the Letter of
Transmittal and all other required documents cannot be delivered to The First
National Bank of Chicago (the "Exchange Agent") on or prior to the Expiration
Date (as defined in the Prospectus referred to below) or (iii) the procedures
for delivery by book-entry transfer cannot be completed on a timely basis.
This Notice of Guaranteed Delivery may be delivered by hand, overnight courier
or mail, or transmitted by facsimile transmission, to the Exchange Agent. See
"The Exchange Offer - Prospectus for Tendering Old Notes" in the Prospectus.
The Exchange Agent for the Exchange Offer is:
THE FIRST NATIONAL BANK OF CHICAGO
<TABLE>
<CAPTION>
By Mail: By Overnight Delivery or Hand:
------- -----------------------------
<S> <C>
The First National Bank of Chicago The First National Bank of Chicago
c/o First Chicago Trust Company c/o First Chicago Trust Company
of New York of New York
Attn: Corporate Trust Administration Attn: Corporate Trust Administration
14 Wall Street 14 Wall Street
8th Floor, Window 2 8th Floor, Window 2
New York, NY 10005 New York, NY 10005
</TABLE>
To Confirm by Telephone or for Information:
(212) 240-8862
Facsimile Transmissions:
(212) 240-8938
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS
OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED
DELIVERY VIA FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT
CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO
GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO
BE GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE> 2
Ladies and Gentlemen:
The undersigned hereby tenders to RPM, Inc., an Ohio
corporation (the "Company"), upon the terms and subject to the conditions set
forth in the Prospectus dated October 10, 1995 (as the same may be amended or
supplemented from time to time, the "Prospectus"), and the related Letter of
Transmittal (which together constitute the "Exchange Offer"), receipt of which
is hereby acknowledged, the aggregate principal amount of Old Notes set forth
below pursuant to the guaranteed delivery procedures set forth in the
Prospectus under the caption "The Exchange Offer - Procedures for Tendering Old
Notes."
<TABLE>
<CAPTION>
Aggregate Principal Name(s) of Registered Holder(s):
Amount Tendered:
----------------- ------------------------------
<S> <C>
Certificate No(s).
(if available): ____ Address(es): ____________
- --------------------------------- ------------------------------
- --------------------------------- ------------------------------
If Old Notes will be tendered by Area Code and Telephone
book-entry transfer, provide the Number(s):____________________
following information:
------------------------------
DTC Account Number:______________
Signature(s):_________________
Date:
---------------------------- ------------------------------
</TABLE>
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
2
<PAGE> 3
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule
17Ad-15 under the Securities Exchange Act of 1934, as amended, as an "eligible
guarantor institution," including (as such terms are defined therein): (i) a
bank; (ii) a broker, dealer, municipal securities broker, municipal securities
dealer, government securities broker, government securities dealer; (iii) a
credit union; (iv) a national securities exchange, registered securities
association or clearing agency; or (v) a savings association that is a
participant in a Securities Transfer Association recognized program (each of
the foregoing being referred to as an "Eligible Institution"), hereby
guarantees to deliver to the Exchange Agent, at one of its addresses set forth
above, either the Old Note tendered hereby in proper form for transfer, or
confirmation of the book-entry transfer of such Old Note to the Exchange
Agent's account at The Depositary Trust Company ("DTC"), pursuant to the
procedures for book-entry transfer set forth in the Prospectus, in either case
together with one or more properly completed and duly executed Letter(s) of
Transmittal (or facsimile thereof) and any other required documents within
three business days after the date of execution of this Notice of Guaranteed
Delivery.
The undersigned acknowledges that it must deliver the
Letter(s) of Transmittal and the Old Notes(s) tendered hereby to the Exchange
Agent within the time period set forth above and that failure to do so could
result in a financial loss to the undersigned.
<TABLE>
<S> <C>
Name of Firm:
------------------------------------- ------------------------------------------
(Authorized Signature)
Address: Title:
------------------------------------------ -----------------------------------
Name:
- -------------------------------------------------- -------------------------------------
(Zip Code) (Please type or print)
Area Code and
Telephone Number: Date:
--------------------------------- -------------------------------------
</TABLE>
NOTE: DO NOT SEND OLD NOTES WITH THIS NOTICE OF GUARANTEED
DELIVERY. ACTUAL SURRENDER OF OLD NOTES MUST BE MADE PURSUANT TO, AND BE
ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF TRANSMITTAL
AND ANY OTHER REQUIRED DOCUMENTS.
3
<PAGE> 1
EXHIBIT 99.6
------------
October 10, 1995
The First National Bank of Chicago
One First National Plaza, Mail Suite 0126
Chicago, Illinois 60670-0126
Ladies and Gentlemen:
RPM, Inc., an Ohio corporation (the "Company"), hereby appoints The First
National Bank of Chicago ("First Chicago") to act as exchange agent (the
"Exchange Agent") in connection with an exchange offer by the Company to
exchange up to $150,000,000 aggregate principal amount of its 7.0% Senior Notes
Due 2005 (the "New Notes"), which have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), for a like principal amount of its
outstanding 7.00% Senior Notes Due 2005 (the "Old Notes" and together with the
New Notes, the "Notes"). The terms and conditions of the exchange offer are
set forth in a Prospectus dated October 10, 1995 (as the same may be amended or
supplemented from time to time, the "Prospectus") and in the related Letter of
Transmittal, which together constitute the "Exchange Offer." The registered
holders of the Notes are hereinafter referred to as the "Holders." Capitalized
terms used herein and not defined shall have the respective meanings described
thereto in the Prospectus.
On the basis of the representations, warranties and agreements of the Company
and First Chicago contained herein and subject to the terms and conditions
hereof, the following sets forth the agreement (the "Agreement") between the
Company and First Chicago as Exchange Agent for the Exchange Offer:
<PAGE> 2
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
----------------------------------------
a. The Company hereby authorizes and acknowledges that First Chicago has been
retained pursuant to this Agreement to act solely as Exchange Agent in
connection with the Exchange Offer and First Chicago agrees to act as Exchange
Agent in connection with the Exchange Offer. As Exchange Agent, First Chicago
will perform those services as are outlined herein, which are specifically set
forth in the section of the Prospectus captioned "The Exchange Offer" and in
the Letter of Transmittal and which are customarily performed by an exchange
agent in connection with an exchange offer of like nature, including, but not
limited to, accepting tenders of Old Notes, reasonably assisting the Company in
the preparation of the documentation necessary to effect the transactions
herein contemplated (without assuming responsibility for such documentation,
unless such information has been furnished to the Company in writing by First
Chicago) and communicating generally regarding the Exchange Offer with brokers,
dealers, commercial banks, trust companies and other persons, including Holders
of the Old Notes; provided, however, that in no way will First Chicago's
general duty to act in good faith and without gross negligence or willful
misconduct be discharged by the foregoing.
b. First Chicago will examine each of the Letters of Transmittal and
certificates for Old Notes and any other documents delivered or mailed to First
Chicago by or for Holders of the Old Notes, and any book-entry confirmations
(as defined in the Prospectus) received by First Chicago with respect to the
Old Notes, to ascertain whether: (i) the Letters of Transmittal and any such
other documents are duly executed and properly completed in accordance with the
instructions set forth therein and that such book-entry confirmations are
2
<PAGE> 3
in due and proper form and contain the information required to be set forth
therein, and (ii) the Old Notes have otherwise been properly tendered. In each
case where the Letters of Transmittal or any other documents have been
improperly completed or executed or where book-entry confirmations are not in
due and proper form or omit certain information, or any of the certificates for
Old Notes are not in proper form for transfer or some other irregularity in
connection with the tender or acceptance of the Old Notes exists, First Chicago
will endeavor, subject to the terms and conditions of the Exchange Offer, to
advise the tendering Holders of the irregularity and to take any other action
as may be necessary or advisable to cause such irregularity to be corrected.
Notwithstanding the above, First Chicago shall not be under any duty to give
any notification of any irregularities in tenders or incur any liability for
failure to give any such notification.
c. With the approval of the Chief Executive Officer, the President or any
Vice President of the Company, (such approval, if given orally, to be promptly
confirmed in writing) or any other party designated by any such officer (such
designation, if given orally, to be promptly confirmed in writing), First
Chicago is authorized to waive any irregularities in connection with any tender
of Old Notes pursuant to the Exchange Offer.
d. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange Offer"
and Old Notes shall be considered properly tendered only when tendered in
accordance with such procedures set forth therein. Notwithstanding the
provisions of this paragraph, Old Notes which the Chief Executive Officer, the
President, any Vice President or any other designated officer of the Company
(such designation, if given orally, to be promptly confirmed in
3
<PAGE> 4
writing), shall approve (such approval, if given orally, to be promptly
confirmed in writing) as having been properly tendered shall be considered to
be properly tendered.
e. First Chicago shall advise the Company with respect to any Old Notes
received as soon as possible after 5:00 p.m., New York City time, on the
Expiration Date and accept its instructions with respect to disposition of such
Old Notes.
f. First Chicago shall ensure (i) that each Letter of Transmittal and, if
required pursuant to the terms of the Exchange Offer, the related Old Notes or
a bond power are duly executed (with signatures guaranteed where required) by
the appropriate parties in accordance with the terms of the Exchange Offer;
(ii) in those instances where the person executing the Letter of Transmittal
(as indicated on the Letter of Transmittal) is acting in a fiduciary or a
representative capacity, proper evidence of his or her authority so to act is
submitted; (iii) in those instances where Old Notes are tendered by persons
other than the registered holder of such Old Notes, that customary transfer
requirements, including any applicable transfer taxes, and the requirements
imposed by the transfer restrictions on the Old Notes (including any applicable
requirements for certifications, legal opinions or other information) are
fulfilled; (iv) that Old Notes tendered in part are tendered in principal
amounts of $1,000 and integral multiples thereof and that if any Old Notes are
tendered for exchange in part, the untendered principal amount thereof is
$250,000 or any integral multiple of $1,000 in excess thereof; and (v) First
Chicago shall deliver certificates for Old Notes tendered in part to the
transfer agent for split-up and shall return any untendered Old Notes or Old
Notes which have not been accepted by the Company to the Holders promptly after
the expiration or termination of the Exchange Offer.
4
<PAGE> 5
g. Upon acceptance by the Company of any Old Notes duly tendered pursuant to
the Exchange Offer (such acceptance if given orally, to be promptly confirmed
in writing), First Chicago will cause New Notes in exchange therefor to be
issued as promptly as possible (subject to receipt from the Company of
appropriate certificates under the related Indenture) and First Chicago will
deliver such New Notes on behalf of the Company at the rate of $1,000 principal
amount of New Notes for each $1,000 principal amount of Old Notes tendered as
promptly as possible after acceptance by the Company of the Old Notes for
exchange and notice (such notice if given orally, to be promptly confirmed in
writing) of such acceptance by the Company; provided, however, that in all
cases, Old Notes tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by First Chicago of certificates for such Old Notes (or a
book-entry confirmation), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) with any required signature guarantees and
any other required documents. Unless otherwise instructed by the Company,
First Chicago shall issue New Notes only in denominations of $1,000 or any
integral multiple thereof.
h. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time on or prior to the Expiration Date in accordance with the
terms of the Exchange Offer.
i. Notice of any decision by the Company not to exchange any Old Notes
tendered shall be given by the Company either orally (if given orally, to be
promptly confirmed in writing) or in a written notice to First Chicago.
5
<PAGE> 6
j. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender or
otherwise, First Chicago shall, upon notice from the Company (such notice if
given orally, to be promptly confirmed in writing), promptly after the
expiration or termination of the Exchange Offer return such certificates for
unaccepted Old Notes (or effect appropriate book-entry transfer), together with
any related required documents and the Letters of Transmittal relating thereto
that are in First Chicago's possession, to the persons who deposited such
certificates.
k. Certificates for reissued Old Notes, unaccepted Old Notes or New Notes
shall be forwarded by (a) first-class certified mail, return receipt requested
under a blanket surety bond obtained by First Chicago protecting First Chicago
and the Company from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (b) by registered mail insured by First
Chicago separately for the replacement value of each such certificate.
l. First Chicago is not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, commercial bank, trust
company or other nominee or to engage or use any person to solicit tenders.
m. As Exchange Agent, First Chicago:
(i) shall have no duties or obligations other than those specifically set
forth in the Prospectus, the Letter of Transmittal or herein or as may be
subsequently agreed to in writing;
(ii) will make no representations and will have no responsibilities as to
the validity, value or genuineness of any of the certificates for the Old
Notes deposited pursuant to the Exchange Offer, and will not be required to
and will make no
6
<PAGE> 7
representation as to the validity, value or genuineness of the Exchange
Offer; provided, however, that in no way will First Chicago's general duty to
act in good faith and without gross negligence or willful misconduct be
limited by the foregoing;
(iii) shall not be obligated to take any legal action hereunder which might
in First Chicago's reasonable judgment involve any expense or liability,
unless First Chicago shall have been furnished with reasonable indemnity;
(iv) may reasonably rely on and shall be protected in acting in reliance
upon any certificate, instrument, opinion, notice, letter, telegram or other
document or security delivered to First Chicago and reasonably believed by
First Chicago to be genuine and to have been signed by the proper party or
parties;
(v) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution and
validity and effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which First Chicago believes
in good faith to be genuine and to have been signed or represented by a
proper person or persons acting in a fiduciary or representative capacity (so
long as proper evidence of such fiduciary's or representative's authority so
to act is submitted to First Chicago) and First Chicago examines and
reasonably concludes that such evidence properly establishes such authority;
7
<PAGE> 8
(vi) may rely on and shall be protected in acting upon written or oral
instructions from the Chief Executive Officer, the President, any Vice
President or any other designated officer of the Company (such designation,
if given orally, to be promptly confirmed in writing);
(vii) may consult with its own counsel with respect to any questions
relating to First Chicago's duties and responsibilities and the written
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by
First Chicago hereunder in good faith and in accordance with the written
opinion of such counsel; and
(viii) shall not advise any person tendering Old Notes pursuant to the
Exchange Offer as to whether to tender or refrain from tendering all or any
portion of its Old Notes or as to the market value, decline or appreciation
in market value of any Old Notes that may or may not occur as a result of the
Exchange Offer or as to the market value of the New Notes. n. First Chicago
shall take such action as may from time to time be requested by the Company
(and such other action as First Chicago may
reasonably deem appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery or such other forms as may be
approved from time to time by the Company, to all persons requesting such
documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information shall relate
only to the procedures for tendering into (or withdrawing from) the Exchange
Offer. The Company will furnish you with copies of such documents at your
request.
8
<PAGE> 9
o. First Chicago shall advise orally and promptly thereafter confirm in
writing to the Company and such other person or persons as the Company may
request, daily (and more frequently during the week immediately preceding the
Expiration Date and if otherwise reasonably requested) up to and including the
Expiration Date, the aggregate principal amount of Old Notes which have been
duly tendered pursuant to and in compliance with the terms of the Exchange
Offer and the items received by First Chicago pursuant to the Exchange Offer
and this Agreement, separately reporting and giving cumulative totals as to
items properly received and items improperly received. In addition, First
Chicago will also provide, and cooperate in making available to the Company, or
any such other person or persons upon request (such request if made orally, to
be promptly confirmed in writing) made from time to time, such other
information as the Company may reasonably request. Such cooperation shall
include, without limitation, the granting by First Chicago to the Company, and
such person or persons as the Company may request, access to those persons on
First Chicago's staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date the Company shall have
received adequate information in sufficient detail to enable the Company to
decide whether to extend the Exchange Offer. First Chicago shall prepare a
final list of all persons whose tenders were accepted, the aggregate principal
amount of Old Notes tendered, the aggregate principal amount of Old Notes
accepted and deliver said list to the Company.
p. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed
Delivery shall be stamped by First Chicago as to the date and the time of
receipt thereof and shall be preserved by First Chicago for a period of time at
least equal to the period of time
9
<PAGE> 10
First Chicago preserves other records pertaining to the transfer of securities,
or one year, whichever is longer, and thereafter shall be delivered by First
Chicago to the Company. First Chicago shall dispose of unused Letters of
Transmittal and other surplus materials by returning them to the Company.
q. First Chicago hereby expressly waives any lien, encumbrance or right of
set-off whatsoever that First Chicago may have with respect to funds deposited
with it for the payment of transfer taxes by reasons of amounts, if any,
advanced to the Company, or any of its subsidiaries or affiliates pursuant to
any loan or credit agreement with First Chicago or for compensation owed to
First Chicago hereunder or for any other matter.
2. COMPENSATION.
Pursuant to a letter agreement, dated as of May 25, 1995 (the "Bond
Trusteeships Fee Schedule"), between the Company and First Chicago, no
additional compensation will be payable to First Chicago in its capacity as
Exchange Agent, it being understood and agreed that the Acceptance Fee and the
Annual Administration Fee payable pursuant to the Bond Trusteeships Fee
Schedule are intended to cover, among other things, the services of First
Chicago as Exchange Agent; provided, further, that First Chicago reserves the
right to receive reimbursement from the Company for any reasonable
out-of-pocket expenses incurred as Exchange Agent in performing the services
described herein.
3. INDEMNIFICATION.
a. The Company hereby agrees to protect, defend, indemnify and hold harmless
First Chicago against and from any and all costs, losses, liabilities, expenses
(including reasonable counsel fees and disbursements) and claims imposed upon
or asserted against First
10
<PAGE> 11
Chicago on account of any action taken or omitted to be taken by First Chicago
in connection with its acceptance of or performance of its duties under this
Agreement and the documents related thereto as well as the reasonable costs and
expenses of defending itself against any claim or liability arising out of or
relating to this Agreement and the documents related thereto. This
indemnification shall survive the release, discharge, termination, and/or
satisfaction of this Agreement. Anything in this Agreement to the contrary
notwithstanding, the Company shall not be liable for indemnification or
otherwise for any loss, liability, cost or expense to the extent arising out of
First Chicago's bad faith, gross negligence or willful misconduct. In no case
shall the Company be liable under this indemnification agreement with respect
to any claim against First Chicago unless the Company shall be notified by
First Chicago, by letter, of the written assertion of a claim against First
Chicago or of any other action commenced against First Chicago, promptly after
First Chicago shall have received any such written assertion or shall have been
served with a summons in connection therewith. The Company shall be entitled
to participate at its own expense in the defense of any such claim or other
action, and, if the Company so elects, the Company may assume the defense of
any pending or threatened action against First Chicago in respect of which
indemnification may be sought hereunder, in which case the Company shall not
thereafter be responsible for the fees and disbursements of legal counsel for
First Chicago under this paragraph; provided that the Company shall not be
entitled to assume the defense of any such action if the named parties to such
action include both the Company and First Chicago and representation of both
parties by the same legal counsel would, in the written opinion of counsel for
First Chicago, be inappropriate due to conflicting interests between them. In
the
11
<PAGE> 12
event First Chicago shall engage legal counsel as a result of events set forth
in the immediately preceding proviso, the Company shall be responsible for the
fees and disbursements of such counsel. It is understood, however, that the
Company shall not be liable under this paragraph for the fees and disbursements
of more than one legal counsel for First Chicago. In the event that the
Company shall assume the defense of any such suit, the Company shall not
therewith be liable for the fees and expenses of any counsel retained by First
Chicago.
b. First Chicago agrees that, without the prior written consent of the
Company (which consent shall not be unreasonably withheld), it will not settle,
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding in respect of which indemnification could be sought
in accordance with the indemnification provision of this Agreement (whether or
not First Chicago or the Company or any of its directors, officers and
controlling persons is an actual or potential party to such claim, action or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of the Company and its directors, officers and
controlling persons from all liability arising out of such claim, action or
proceeding.
4. TAX INFORMATION.
a. First Chicago shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the
Internal Revenue Service. The Company understands that First Chicago is
required, in certain instances, to deduct 31% with respect to interest paid on
the New Notes and proceeds from the sale, exchange, redemption or
12
<PAGE> 13
retirement of the New Notes from Holders who have not supplied their correct
Taxpayer Identification Number or required certification. Such funds will be
turned over by First Chicago to the Internal Revenue Service.
b. First Chicago shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Old Notes and, upon receipt of written
approval from the Company shall deliver or cause to be delivered, in a timely
manner, to each governmental authority to which any transfer taxes are payable
in respect of the exchange of Old Notes, a check in the amount of all transfer
taxes so payable, and the Company shall reimburse First Chicago for the amount
of any and all transfer taxes payable in respect of the exchange of Old Notes;
provided, however, that First Chicago shall reimburse the Company for amounts
refunded to it in respect of its payment of any such transfer taxes, at such
time as such refund is received by First Chicago.
5. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
executed in and to be performed in that state.
6. NOTICES. Any communication or notice provided for hereunder shall be in
writing and shall be given (and shall be deemed to have been given upon
receipt) by delivery in person, telecopy, or overnight delivery or by
registered or certified mail (postage prepaid, return receipt requested) to
the applicable party at the addresses indicated below:
13
<PAGE> 14
If to the Company:
RPM, Inc.
P.O. Box 777
2628 Pearl Road
Medina, Ohio 44258
Telecopier No.: (216) 225-8743
Attention: Frank C. Sullivan, Vice President and
Chief Financial Officer
With a copy to:
Calfee, Halter & Griswold
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114
Telecopier No.: (216) 241-0816
Attention: William A. Papenbrock, Esq.
If to First Chicago:
The First National Bank of Chicago
One First National Plaza
Mail Suite 0126
Chicago, Illinois 60670-0126
Telecopier No. (312) 407-4656
Attention: Richard D. Manella, Esq.
or, as to each party, at such other address as shall be designated by such
party in a written notice complying as to delivery with the terms of this
Section.
7. PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement. Without limitation to the foregoing, the parties hereto
14
<PAGE> 15
expressly agree that no holder of Old Notes or New Notes shall have any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
8. COUNTERPARTS; SEVERABILITY. This Agreement may be executed in
one or more counterparts, and by different parties hereto on separate
counterparts, each of which when so executed shall be deemed an original, and
all of such counterparts shall together constitute one and the same agreement.
If any term or other provision of this Agreement or the application thereof is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
agreements contained herein is not affected in any manner adverse to any party.
Upon such determination that any term or provision or the application thereof
is invalid, illegal or unenforceable, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that
the agreements contained herein may be performed as originally contemplated to
the fullest extent possible.
9. CAPTIONS. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
10. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended or modified nor may any provision hereof be
waived except in writing signed by each party to be bound thereby.
15
<PAGE> 16
11. TERMINATION. This Agreement shall terminate upon the earlier of (a) the
90th day following the expiration, withdrawal, or termination of the Exchange
Offer, (b) the close of business on the date of actual receipt of written
notice by First Chicago from the Company stating that this Agreement is
terminated, (c) one year following the date of this Agreement, or (d) the time
and date on which this Agreement shall be terminated by mutual consent of the
parties hereto.
12. RESIGNATION OF EXCHANGE AGENT.
First Chicago as Exchange Agent reserves the right to resign at any time by
giving written notice of its resignation, specifying the effective date
thereof, to the Company. Within 45 days after receiving the aforesaid notice,
the Company shall seek to appoint a successor Exchange Agent to which First
Chicago shall distribute the monies and other property then held hereunder. If
a successor Exchange Agent has not been appointed by the Company and/or has not
accepted such appointment by the end of such 45 day period, First Chicago may
apply to a court of competent jurisdiction for the appointment of a successor
Exchange Agent and the reasonable fees, costs and expenses (including the
reasonable fees and disbursements of legal counsel) which it incurs in
connection with such a proceeding shall be paid by the Company. Anything in
this Agreement to the contrary notwithstanding, the resignation of First
Chicago as Exchange Agent shall not be effective until a successor Exchange
Agent is appointed by the Company and has accepted such appointment.
13. MISCELLANEOUS.
a. First Chicago hereby acknowledges receipt of the Prospectus and the Letter
of Transmittal and the Notice of Guaranteed Delivery and further acknowledges
that it has
16
<PAGE> 17
examined each of them. Any inconsistency between this Agreement, on the one
hand, and the Prospectus and the Letter of Transmittal and the Notice of
Guaranteed Delivery (as they may be amended or supplemented from time to time),
on the other hand, shall be resolved in favor of the latter three documents,
except with respect to the duties, liabilities and indemnification of First
Chicago as Exchange Agent which shall be controlled by this Agreement.
Kindly indicate your willingness to act as Exchange Agent and First Chicago's
acceptance of the foregoing provisions by signing in the space provided below
for that purpose and returning to the Company a copy of this Agreement so
signed, whereupon this Agreement and First Chicago's acceptance shall
constitute a binding agreement between First Chicago and the Company.
Very truly yours,
RPM, INC.
______________________________
Frank C. Sullivan
Vice President and
Chief Financial Officer
Accepted and agreed to as of
the date first written above:
THE FIRST NATIONAL BANK OF CHICAGO
By: ______________________________
Name:
Title:
373/06821AYD.351
17
<PAGE> 1
EXHIBIT 99.7
------------
October 6, 1995
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: RPM, Inc.
Form S-4 Registration Statement
(Reg. No. 33-61541)
-------------------------------
RPM, Inc. hereby requests that the effective date of the
above-referenced Registration Statement be accelerated to 9:30 a.m. on Tuesday,
October 10, 1995 or as soon thereafter as is practicable.
Very truly yours,
Frank C. Sullivan
Vice President and
Chief Financial Officer
