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As filed with the Securities and Exchange Commission on January 23, 1996
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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RPM, Inc.
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(Exact name of registrant as specified in its charter)
Ohio
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(State or other jurisdiction of incorporation or organization)
34-6550857
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(I.R.S. Employer Identification No.)
2628 Pearl Road, P.O. Box 777, Medina, Ohio 44258 (216) 273-5090
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(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Copy to:
Thomas C. Sullivan William A. Papenbrock, Esq.
RPM, Inc. Calfee, Halter & Griswold
P.O. Box 777 1400 McDonald Investment Center
Medina, Ohio 44258 800 Superior Avenue
(216) 273-5090 Cleveland, Ohio 44114
(216) 622-8200
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of the Registration Statement and after
compliance with applicable state and federal laws.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for he same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each class of securities Proposed maximum Amount of
to be registered aggregate offering price (1) registration fee
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<S> <C> <C>
Common Shares,
without par value....................... $15.75 $830
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), using the average of the high and low sales
prices of the Common Shares of the Registrant as reported on the NASDAQ
National Market System on January 19, 1996.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE> 3
Subject to Completion, Dated January 26, 1996
PROSPECTUS
RPM, INC.
152,777
COMMON SHARES
(without par value)
This Prospectus relates to the offer and sale of 152,777 Common Shares,
without par value (the "Common Shares"), of RPM, Inc., an Ohio corporation (the
"Company"). All of the Common Shares being registered may be offered and sold
from time to time by certain selling shareholders of the Company. See "Selling
Shareholders" and "Manner of Offering." The Company will not receive any
proceeds from the sale of the Common Shares.
The Company's Common Shares are traded on the Nasdaq National Market
under the symbol "RPOW." On January 25, 1996 the last reported sale price for
the Common Shares was $ 14.875 per share.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus (including the
material incorporated herein by reference) and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or by any other person deemed to be an underwriter. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy the shares covered by this Prospectus by anyone in any state in which such
offer or solicitation is not authorized or in which the person making such offer
or solicitation is not qualified to do so to anyone to whom it is unlawful to
make such offer or solicitation. Neither the delivery of this Prospectus nor any
sale made hereunder shall under any circumstances create an implication that
there has been no change in the affairs of the Company since the date hereof.
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The date of this Prospectus is January 26, 1996
<PAGE> 4
THE COMPANY
RPM, Inc., an Ohio corporation, has its principal executive offices at
2628 Pearl Road, P.O. Box 777, Medina, Ohio 44258, and its telephone number is
(216) 273-5090. As used in this Prospectus, the "Company" shall refer to RPM,
Inc. and its consolidated subsidiaries, unless the context indicates otherwise.
Information in this Prospectus has been adjusted for a five-for-four share split
effected in the form of a 25% share dividend paid on December 8, 1995.
CURRENT DEVELOPMENTS
7% SENIOR NOTES DUE 2005.
On June 20, 1995 the Company sold $150 million aggregate principal
amount of 7.0% Senior Notes Due 2005 (the "Notes") 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"). The Initial Purchasers resold the Notes in transactions
not requiring registration under the Securities Act of 1933, as amended (the
"Securities Act"). Pursuant to the terms of the Purchase Agreement the Company
completed a registered exchange offer for the Notes under the Securities Act on
November 14, 1995, exchanging $150 million aggregate principal amount of the
Company's 7.0% Senior Exchange Notes due 2005 for $150 million aggregate
principal amount of Notes.
ACQUISITION OF NARRAGANSETT/DSI ACQUISITION CO., INC.
On July 24, 1995, the Company entered into a Plan and Agreement of
Merger (the "Merger Agreement") with Narragansett/DSI Acquisition Co., Inc., a
Delaware corporation ("NDSI"), and NDSI's securityholders. Pursuant to the
Merger Agreement the Company agreed to acquire 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 would become a wholly
owned subsidiary of the Company. The Merger was completed on September 21, 1995.
For additional information with respect to the Company's acquisition of NDSI,
see the Company's Form 8-K Current Report, dated July 24, 1995, which was filed
with the Securities and Exchange Commission (the "Commission") and 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.
ACQUISITION OF TCI, INC.
On January 11, 1996, the Company, RPM of Georgia, Inc., a wholly-owned
subsidiary of the Company ("RPM of Georgia") and TCI, Inc., a Georgia
corporation ("TCI") entered into an Agreement and Plan of Reorganization
pursuant to which, as of such date, RPM of Georgia merged with and into TCI,
whereby TCI became a wholly-owned subsidiary of the Company.
RISK FACTOR
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, 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
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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.
Based on their experience with reported claims, management, in fall
1995, recorded a $6 million charge against earnings for future rust warranty
claims relating to products produced prior to April 1991, which reserve could
not be reasonably estimated prior to that time.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Commission
which may be inspected and copied at the public reference facilities maintained
by the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549.
Such reports, proxy statements and other information filed by the Company also
are available for inspection and copying at the regional offices of the
Commission located at: Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661; and at Seven World Trade Center, 13th Floor, New York,
New York 10048. Copies of such material also may be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 upon payment of prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company will provide, without charge, to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any and all of the information that has been incorporated by reference in
this Prospectus (not including exhibits to the information that is incorporated
by reference unless such exhibits are specifically incorporated by reference
into the information that the Prospectus incorporates). Such request should be
directed to Paul A. Granzier, Esq., Secretary, RPM, Inc., 2628 Pearl Road, P.O.
Box 777, Medina, Ohio 44258, telephone (216) 273-5090.
The Company hereby incorporates the following documents in this
Prospectus by reference: (a) the Company's Annual Report on Form 10-K for the
fiscal year ended May 31, 1995; (b) the Company's Quarterly Report on Form 10-Q
for the periods ended August 31, 1995, and November 30, 1995; and (c) the
Company's Current Report on Form 8-K dated July 24, 1995 and amendments thereto
on Form 8-K/A dated September 18, 1995 and October 6, 1995.
All documents subsequently filed pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act prior to the termination of this offering shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents.
SELLING SHAREHOLDERS
The Common Shares covered by this Prospectus are being offered and sold
by the shareholders of the Company listed below (the "Selling Shareholders").
The Company issued such Common Shares to the Selling Shareholders on March 31,
1995 in connection with the merger (the "Merger") of Simian Company, Inc., a
Delaware corporation ("Old Simian") with and into LS Acquisition Company, a
Delaware corporation and a direct, wholly-owned subsidiary of the Company ("New
Simian"). Immediately after the Merger, New Simian changed its name to Simian
Company, Inc. In connection with the Merger, the stockholders of Old Simian
received, in the aggregate, 152,777 Common Shares of the Company. The 152,777
Common Shares owned by the Selling Shareholders represent all of the Common
Shares presently owned by them.
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The following table shows as to each Selling Shareholder the number of
Common Shares owned by each Selling Shareholder prior to this offering and the
number of Common Shares being registered hereby:
<TABLE>
<CAPTION>
Shares Number
owned of
prior to Shares
Name offering registered
- ---- -------- ----------
<S> <C> <C>
Kenneth A. Haines(1).......................................... 92,592 92,592
Debby L. Haines(2)............................................ 60,185 60,185
------- -------
Total..................... 152,777(3) 152,777(3)
======= =======
</TABLE>
- --------------
(1) Effective the same day as the Merger, New Simian entered into an
Employment Agreement with Kenneth A. Haines pursuant to which he agreed
to serve as President of New Simian until March 31, 1998. Mr. Haines
also serves as a Director of New Simian; formerly he was an officer and
Director of Old Simian.
(2) Effective the same day as the Merger, New Simian entered into an
Employment Agreement with Debby L. Haines pursuant to which she agreed
to serve as Vice President of New Simian until March 31, 1998. Ms.
Haines formerly was an officer and Director of Old Simian.
(3) Includes 12,222 Common Shares, consisting of 8,148 Common Shares owned
by Kenneth A. Haines, and 4,074 Common Shares owned by Debby L. Haines,
being held in escrow by National City Bank (the "Escrow Agent") in
accordance with an Escrow Agreement dated March 31, 1995 by and among
the Selling Shareholders, the Escrow Agent, New Simian and the Company
(the "Escrow Agreement") until the later of (i) March 31, 1996, or (ii)
the resolution of certain litigation described in the Escrow Agreement.
The Common Shares held under the Escrow Agreement are for the purpose
of indemnifying the Company against losses resulting from any breach of
the representations, warranties and covenants contained in the
Agreement and Plan of Reorganization dated March 31, 1995, by and among
the Company, Old Simian, New Simian and the Selling Shareholders. As
and in the manner provided for in the Escrow Agreement, the Selling
Shareholders may substitute suitable collateral for the Common Shares
held in escrow.
In connection with the Merger, Mr. Haines and Ms. Haines also entered
into Noncompetition Agreements with New Simian.
Securities Agreement
Under the terms of a Securities Agreement dated March 31, 1995 by and
among the Company and the Selling Shareholders (the "Securities Agreement"), the
Company agreed to use its best efforts to file a registration statement with
respect to the 152,777 Common Shares and to maintain the effectiveness of such
registration statement for a period of 24 months from the date of this
Prospectus. All of the registration and qualification fees, printing and
accounting fees, and fees and disbursements of the Company's legal counsel
incurred in connection with the registration of the Common Shares will be paid
by the Company; provided, however, that any underwriters' discounts and
commissions and brokerage or dealer commissions will be borne by the Selling
Shareholders. The 152,777 Common Shares may be offered and sold from time to
time within such 24-month period as determined by the Selling Shareholders. The
Securities Agreement grants the Company the right to be notified of the terms,
including price and identity of the purchaser, of any private sale in one or a
series of related transactions of all or substantially all of the Common Shares
owned by a Selling Shareholder. As of the date of
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this Prospectus, the Company is unaware of any plans or intentions of the
Selling Shareholders with respect to the amount of Common Shares either of them
desire to sell or when either of the Selling Shareholders would desire to sell
their Common Shares.
MANNER OF OFFERING
Sales may be made in the over-the-counter market or otherwise at prices
and at terms then prevailing or at prices related to the then current market
price, or in negotiated transactions. The shares may be sold by one or more of
the following: (a) a block trade in which the broker or dealer so engaged will
attempt to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction; (b) purchases by a broker or
dealer as principal and resale by such broker or dealer for its account pursuant
to this Prospectus; and (c) ordinary brokerage transactions and transactions in
which the broker solicits purchasers. In effecting sales, brokers or dealers
engaged by the Selling Shareholders may arrange for other brokers or dealers to
participate. Brokers or dealers will receive commissions or discounts from
Selling Shareholders in amounts to be negotiated immediately prior to sale. Such
brokers or dealers may be deemed to be "underwriters" within the meaning of the
Securities Act, in connection with such sales. In addition, any securities
covered by this Prospectus which qualify for sale pursuant to Rule 144 may be
sold under Rule 144 rather than pursuant to this Prospectus.
The Company has advised the Selling Shareholders of their obligations
under the Exchange Act to avoid market manipulation of the Common Shares
(including, without limitation, their obligation not to purchase or solicit
purchases by others of any of the Common Shares during the two business days
preceding the commencement of any offers or sales of the Common Shares by any of
the Selling Shareholders) until the offering pursuant to this Prospectus by all
Selling Shareholders has been completed.
The Company also has advised the Selling Shareholders of their
obligations under the Securities Act to deliver copies of this Prospectus to any
purchaser of their Common Shares.
DESCRIPTION OF COMMON SHARES
The following summary contains certain information regarding the
Company's Common Shares. This information is qualified in its entirety by
reference to the Company's Amended Articles of Incorporation, as amended (the
"Amended Articles"), and Chapter 1701 of the Ohio Revised Code.
The Company is incorporated under the laws of the State of Ohio and its
authorized capital stock consists of 100,000,000 Common Shares, without par
value. There were 75,305,486 shares outstanding as of January 2, 1996. All of
the Common Shares of the Company to be sold by the Selling Shareholders have
been duly authorized and validly issued, and are fully paid and nonassessable.
Dividends, which may be declared at the discretion of the Board of Directors of
the Company, must be paid equally on all issued and outstanding Common Shares
out of funds legally available therefor. Upon liquidation, any excess net assets
after all payments of debts and costs must be paid to shareholders in proportion
to the number of Common Shares held. The Common Shares are not subject to
preemptive rights, conversion rights, redemption provisions or sinking fund
provisions.
The holder of each Common Share is entitled to one vote on all matters
submitted to shareholders generally, except that shareholders have the right to
cumulate their votes for the election of Directors as permitted by Ohio law. The
Board of Directors is divided into three Classes with the term of office of one
of such Classes expiring in each year. At each Annual Meeting of Shareholders
the successors to the Directors of the Class whose term is expiring at that time
are elected to hold office for a term of three years. Classification of the
Board of Directors increases the number of Common Shares necessary under
cumulative voting to elect a Director in any given year. Subject to the
provisions of Articles Seventh and Eighth of the Company's Amended Articles, as
hereinafter summarized, all matters submitted to a vote of shareholders are
determined by a vote of the holders of a majority of the outstanding shares
entitled to vote thereon present in person or by proxy at a meeting at which the
vote was taken.
Article Seventh of the Company's Amended Articles provides, in essence,
that proposals (i) with respect to a merger, consolidation or acquisition
wherein the existing shareholders of the Company would hold less than two-thirds
of the voting power of the Company, or of the surviving or new corporation,
immediately after
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consummation of the transaction, and (ii) with respect to a sale of
substantially all of the assets of the Company, both require adoption or
approval by holders of shares representing two-thirds of the voting power of the
Company.
Article Eighth of the Company's Amended Articles provides, in essence,
that the affirmative vote of the holders of shares representing at least 80% of
the voting power of the Company is required to effect a merger, consolidation,
sale, lease or exchange of substantially all of the assets of the Company where
the other party to the transaction, including its "affiliates" and "associated
persons," as defined, is a holder, directly or indirectly, of 5% or more of the
outstanding shares of any class of the Company entitled to vote at a meeting
called to consider such a proposed transaction, as of the record date used to
determine the shareholders entitled to vote upon such transaction. The Board of
Directors, acting in good faith, shall make a conclusive determination as to
whether the proposed transaction requires an 80% vote of shareholders. The
requirement for approval by an 80% vote shall not be applicable to proposals
which received the formal approval of the Board of Directors of the Company
prior to the acquisition of the 5% share interest by the other party, provided
that with respect to any proposed transaction as to which the 80% voting
requirement would otherwise be applicable there also has been a disclosure to
all shareholders of any inducements in connection with the proposed transaction
offered to officers and Directors of the Company which are not extended to all
shareholders.
Ohio Law
As an Ohio corporation, the Company is subject to certain provisions of
Ohio law which may discourage or render more difficult an unsolicited takeover
of the Company. Among these are provisions that (i) prohibit certain mergers,
sales of assets, issuances or purchases of securities, liquidation or
dissolution, or reclassifications of the then outstanding shares of an Ohio
corporation involving certain holders of stock representing 10% or more of the
voting power, unless such transactions are either approved by the Directors in
office prior to the 10% shareholder becoming such or involve a 10% shareholder
which has been such for at least three years and certain requirements related to
the price and form of consideration to be received by shareholders are met; and
(ii) provide Ohio corporations with the right to recover profits realized under
certain circumstances by persons engaged in "greenmailing" or who otherwise sell
securities of a corporation within 18 months of proposing to acquire such
corporation.
In addition, pursuant to Section 1701.831 of the Ohio Revised Code, the
purchase of certain levels of voting power of the Company (one-fifth or more,
one-third or more, or a majority) can be made only with the prior authorization
of the holders of shares representing at least a majority of the total voting
power of the Company and the separate prior authorization of the holders of
shares representing at least a majority of the voting power held by shareholders
other than the proposed purchaser, officers of the Company and Directors of the
Company who are also employees.
VALIDITY OF SHARES
The validity of the Common Shares offered hereby will be passed upon by
Calfee, Halter & Griswold, 1400 McDonald Investment Center, 800 Superior Avenue,
Cleveland, Ohio 44114. William A. Papenbrock, Esq., a partner of Calfee, Halter
& Griswold, is a Director of the Company and as of January 26, 1996
beneficially owned 11,288 Common Shares of the Company.
EXPERTS
The consolidated financial statements of the Company included in its
Annual Report on Form 10-K for the fiscal year ended May 31, 1995 have been
examined by Ciulla, Smith & Dale LLP, 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 years ended December
31, 1994 and 1993 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
and 1993 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
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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.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS.
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses payable by the
Registrant in connection with the sale and distribution of the Common Shares
registered hereby:
<TABLE>
<S> <C>
SEC Registration Fee............................... $ 830.00
Fees and Expenses of Counsel....................... 7,500.00
Miscellaneous...................................... 170.00
---------
Total............................ $8,500.00
=========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Ohio Revised Code Section 1701.13(E) (incorporated herein by reference
as Exhibit 99.1) provides that a corporation may indemnify or agree to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, by reason of the fact that he or she is
or was a Director, officer, employee or agent of the corporation, against
expenses actually incurred by such person in connection with an action if he or
she acted in good faith and in a manner not opposed to the best interests of the
corporation.
Article VI of the Registrant's Amended Code of Regulations
(incorporated herein by reference as Exhibit 99.2) provides for the
indemnification of Directors and officers against certain liabilities.
The Registrant has purchased a Directors and Officers Liability
Insurance Policy, which is filed as Exhibit 99.3 to the Registration Statement
and is incorporated herein by reference thereto.
The Registrant has entered into Indemnification Agreements with each of
its Directors and executive officers providing for additional indemnification
protection beyond that provided by the Directors and Officers Liability
Insurance Policy. A copy of the form of Indemnification Agreement is filed as
Exhibit 99.4 to the Registration Statement and is incorporated herein by
reference thereto. In the Indemnification Agreements, the Registrant has agreed,
subject to certain exceptions, to indemnify and hold harmless the Director or
executive officer to the maximum extent then authorized or permitted by the
provisions of the Registrant's Amended Code of Regulations, the Ohio Revised
Code, or by any amendment(s) thereto.
The Securities Agreement dated March 31, 1995 by and among the
Registrant and the Selling Shareholders provides that each of the Selling
Shareholders will, in connection with any Registration Statement filed by the
Registrant on behalf of such Selling Shareholders, indemnify the Registrant, its
Directors, officers, each person, if any, who controls the Registrant and each
agent for the Registrant (within the meaning of the Securities Act) against
certain liabilities arising out of the Registration Statement and the related
Prospectus. Such Securities Agreement is filed as Exhibit 4.4 to this
Registration Statement and is incorporated herein by reference thereto.
Item 16. Exhibits.
See the Exhibit Index at page E-1 of this Registration Statement.
Item 17. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during the period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or event
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(2) The undersigned Registrant hereby undertakes that for the purpose
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted for Directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a Director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such Director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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<PAGE> 12
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE CITY OF CLEVELAND AND STATE OF OHIO, ON THE 25TH DAY OF
JANUARY, 1996.
RPM, Inc.
By /s/ Thomas C. Sullivan
----------------------------------
Thomas C. Sullivan, Chairman of
the Board of Directors and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, constitutes and appoints Thomas C. Sullivan, James A. Karman,
Paul A. Granzier and William A. Papenbrock, or any one of them, his or her true
and lawful attorneys-in-fact and agents, with full power of substitution for him
or her and his or her name, place and stead, in any and all capacities, to sign
any or all amendments or post-effective amendments to this Registration
Statement, and to file the same, with all Exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto such attorneys-in-fact and agents, or any one of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all
that such attorneys-in-fact and agents or any one of them, or their or his
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AND ON THE 25TH DAY OF JANUARY, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Thomas C. Sullivan Chairman of the Board of
- --------------------------- Directors and Chief Executive
Thomas C. Sullivan Officer (principal executive
officer)
/s/ James A. Karman President, Chief Operating
- --------------------------- Officer and a Director
James A. Karman
/s/ Frank C. Sullivan Vice President and Chief
- --------------------------- Financial Officer (principal
Frank C. Sullivan financial officer)
/s/ Glenn R. Hasman Vice President, Administration
- --------------------------- (principal accounting officer)
Glenn R. Hasman
</TABLE>
II-3
<PAGE> 13
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Max D. Amstutz Director
- ---------------------------
Max D. Amstutz
/s/ Edward B. Brandon Director
- ---------------------------
Edward B. Brandon
/s/ Lorrie Gustin Director
- ---------------------------
Lorrie Gustin
/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
</TABLE>
II-4
<PAGE> 14
RPM, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION OF DOCUMENT PAGE NUMBER
- ------ ----------------------- -----------
<S> <C> <C>
4.1 Amended Articles of Incorporation, as amended, of the
Registrant (A)
4.1.1 Amendment to Articles of Incorporation, as filed with the Ohio (B)
Secretary of State on October 9, 1992
4.2 Amended Code of Regulations of the Registrant (C)
4.3 Specimen Certificate of Common Shares, without par value, of
the Registrant (D)
4.4 Securities Agreement dated March 31, 1995 by and among the
Registrant and the shareholders of Simian Company, Inc.
(without exhibits)
4.5 Specimen LYONs Certificate (B)
5.1 Opinion of Calfee, Halter & Griswold as to the validity of the
shares being offered
23.1 Consent of Calfee, Halter & Griswold (included in Exhibit 5.1)
23.2 Consent of Ciulla, Smith & Dale LLP
23.3 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney and related Certified Resolution
99.1 Ohio Revised Code Section 1701.13(E), pertaining to indemnification (E)
of Directors and officers
99.2 Article VI of the Registrant's Amended Code of Regulations (E)
99.3 Directors and Officers Liability Insurance Policy (E)
99.4 Form of Indemnification Agreement between the Registrant and each (E)
of its Directors and executive officers
</TABLE>
- --------------
(A) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the fiscal year ended May
31, 1984 and the appropriate exhibit to the Registrant's Annual Report
on Form 10-K for the fiscal year ended May 31, 1987.
(B) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Statement on Form S-3 (Reg. No. 33-50868).
(C) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the fiscal year ended May
31, 1988.
E-1
<PAGE> 15
(D) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Registration Statement on Form S-3 (Reg. No. 33-39849).
(E) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Registration Statement on Form S-3 (Reg. No. 33-36396).
E-2
<PAGE> 1
EXHIBIT 4.4
SECURITIES AGREEMENT
THIS AGREEMENT is made as of the 31st day of March, 1995 by and among
RPM, INC., an Ohio corporation ("RPM"), KENNETH A. HAINES AND DEBBY L. HAINES,
the stockholders ("Stockholder(s)") of Simian Company, Inc., a Delaware
corporation ("Simian").
WITNESSETH:
WHEREAS, RPM, LS Acquisition Company, a Delaware corporation ("LS
Acquisition"), Simian and the Stockholders have entered into an Agreement and
Plan of Reorganization of even date herewith ("Reorganization Agreement")
pursuant to which the Stockholders are receiving RPM Common Shares, without par
value ("RPM Shares"), in exchange for their shares of Common Stock, no par
value, of Simian (the "Reorganization"); and
WHEREAS, RPM, LS Acquisition and the Stockholders have agreed that the
issuance of the RPM Shares in the Reorganization shall be pursuant to the
"private offering" exemption from registration with the Securities and Exchange
Commission ("SEC") provided by Section 4(2) of the Securities Act of 1933, as
amended (the "Act"), and Rule 506 promulgated pursuant to the Act; and
WHEREAS, RPM, LS Acquisition and the Stockholders have agreed further
that the Stockholders shall have, under the terms and conditions herein set
forth, the right to require or cause RPM
<PAGE> 2
to register all of the RPM shares received by such Stockholders (the
"Registrable RPM Shares") with the SEC; and
WHEREAS, the Stockholders also desire that the Reorganization be
treated as a tax-free reorganization within the meaning of Section 368(a)(1)(A)
and 368(a)(2)(D) of the Internal Revenue Code of 1986, as amended; and
WHEREAS, RPM and LS Acquisition also desire that the Reorganization be
treated as a pooling-of-interest for accounting purposes;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein and in the Reorganization Agreement,
RPM, LS Acquisition and the Stockholders hereby agree as follows:
1. Exemption from Registration Under Section 4(2) and Rule 506.
In connection with each Stockholder's investment in the Registrable RPM
Shares, each Stockholder hereby represents, warrants, covenants and agrees as
follows:
1.1 Accredited Investor. Each Stockholder either is an "Accredited
Investor" as defined in Rule 501 promulgated pursuant to the Act or has, either
alone or with his or her purchaser representative, such knowledge and experience
in financial and business matters that he or she is capable of evaluating the
merits and risks of investment in the RPM Shares.
1.2 Information Received. Each Stockholder, directly or through his or
her purchaser representative, has received a copy of (i) RPM's Annual Report to
Shareholders for the fiscal year ended May 31, 1994, (ii) Proxy Statement for
the October 10, 1994 annual
-2-
<PAGE> 3
meeting of RPM shareholders, (iii) Annual Report on Form 10-K for the fiscal
year ended May 31, 1994, (iv) Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1994 and November 30, 1994, (v) Current Report on Form
8-K dated June 28, 1994 and amendment thereto on Form 8-K/A dated September 9,
1994, (vi) a brief description of the RPM Shares being offered, (vii) any
material changes in RPM's affairs that are not disclosed in the documents
furnished pursuant to this Section 1.2, which description, if any, is included
in the copy of the letter attached hereto as Exhibit A, and (viii) a description
of the terms or arrangements materially different from those for other Simian
Stockholders, which description (unless described in the Reorganization
Agreement) is included in the copy of the letter attached hereto as Exhibit A.
No Stockholder has made a written request to RPM that they make available to him
or her any exhibits to any of the documents listed in clauses (i) - (v) above.
Each Stockholder, directly or through his or her purchaser representative, has
had at a reasonable time prior to the date of this Agreement the opportunity to
ask questions of and receive answers from RPM concerning the terms and
conditions of the Reorganization, the Registrable RPM Shares and the business of
RPM and to obtain any additional information which RPM possesses or can acquire
without unreasonable effort or expense that each Stockholder has deemed
necessary or desirable to verify the accuracy of the information furnished
pursuant to this Section 1.2.
1.3 Limitations on Resale. Each Stockholder is aware that the
Registrable RPM Shares have not been registered under the
-3-
<PAGE> 4
Act and that he or she must hold such shares indefinitely unless they are
subsequently registered under the Act or an exemption from such registration is
available. Each Stockholder is also aware that any sales of the Registrable RPM
Shares pursuant to SEC Rule 144 may be made only after the minimum two (2) year
holding period and subject to the limitations on volume and manner of sale set
forth therein and only if RPM satisfies the requirements therefor. Each
Stockholder is acquiring the Registrable RPM Shares for his or her own account,
for investment and not with a view to the distribution thereof and will not
sell, transfer or otherwise dispose of such Registrable RPM Shares unless a
registration statement filed with the SEC pursuant to the Act with respect
thereto is in effect or RPM shall have received an opinion of counsel reasonably
satisfactory to it to the effect that such registration is not required. Each
Stockholder acknowledges and agrees that the certificates representing the
Registrable RPM Shares to be received by him or her shall bear a legend in the
form set forth on Exhibit B hereto stating the substance of such restrictions,
as well as those provisions of Section 4 hereof, and that RPM may issue stop
transfer instructions to the transfer agent of RPM Shares to preclude any
transfer in violation of such restrictions. Each Stockholder further
acknowledges that prior to execution and delivery of this Agreement he or she
received a written disclosure of the foregoing limitations on resale of the
Registrable RPM Shares and of the facts that the certificates representing such
shares will bear the above-referenced legend and that the above-referenced stop
transfer instructions will be issued
-4-
<PAGE> 5
as necessary. RPM agrees to cause the restrictive legend referred to above to be
removed from RPM Share Certificates for any Stockholder who qualifies under Rule
144(k).
1.4 Investment Decision. Based upon the information de- livered to each
Stockholder pursuant to this Section 1, a thorough review of this Agreement, the
Reorganization Agreement, and the other agreements and documents delivered in
connection therewith (including the Exhibits and Disclosure Schedules thereto),
each Stockholder understands the terms and conditions of the Reorganization and
of the Registrable RPM Shares to the extent necessary to make the investment
decision required by this Agreement and the Reorganization Agreement.
2. Registration Rights.
2.1 Registration Rights. From and after the date RPM publicly announces
financial results covering at least thirty (30) days of combined operations of
RPM and Simian as described in Section 4 of this Agreement, if RPM shall receive
a written request (or has previously received a written request which has not
been revoked) from a Stockholder that RPM file a registration statement under
the Act, or a similar document pursuant to any other statute then in effect
corresponding to the Act, covering the registration of at least 25% of the
Registrable RPM Shares, then RPM shall promptly notify the other Stockholder of
such request giving him or her not less than twenty (20) days to request to
include all or any portion of their Registrable RPM Shares in such registration
and shall use its best efforts to cause all Registrable RPM Shares that
Stockholders have requested be registered to be registered under
-5-
<PAGE> 6
the Act in a registration intended to permit the offering of the Registrable RPM
Shares continuously from time to time (the "Shelf Registration Statement").
Whenever requested under this Section 2.1 to use its best efforts to effect the
registration of any Registrable RPM Shares, RPM shall, as expeditiously as
reasonably possible (i) prepare and file with the SEC the Shelf Registration
Statement with respect to such Registrable RPM Shares and use its best efforts
to cause such registration statement to become and remain effective for a period
of twenty-four (24) months; provided, however, RPM shall in no event be
obligated either to file more than one (1) such registration statement in any
given six (6)-month period or to cause any such registration to remain effective
for more than twenty-four (24) months (although RPM shall be obligated to keep
such registration effective for twenty-four (24) months), (ii) prepare and file
with the SEC such amendments and supplements to such registration statement and
the Prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement whenever
the Stockholder of such Registrable RPM Shares shall desire to sell or dispose
of same, (iii) furnish to the Stockholders such numbers of copies of a
Prospectus in conformity with the requirements of the Act, and such other
documents as they may reasonably request in order to facilitate the disposition
of the Registrable RPM Shares owned by them, and (iv) use its best efforts to
register and qualify the securities covered by such registration statement under
such other securities or Blue Sky laws
-6-
<PAGE> 7
of such jurisdictions within the United States and Puerto Rico as shall be
reasonably appropriate or as required for the distribution of the securities
covered by the registration statement, and to do such other reasonable acts and
things as may be required of it to enable such Stockholder to consummate the
public sale or other disposition in such jurisdictions of the securities covered
by such registration statement; provided that RPM shall not be required in
connection therewith or as a condition thereto to qualify to do business where
it is not so qualified or to file a general consent to service of process in any
such states or jurisdictions where it has not previously done so. RPM shall be
obligated to effect only one (1) Shelf Registration Statement pursuant to this
Section 2.1 and shall have no obligation with respect to any request for
registration made by any Stockholder pursuant hereto unless such request is
received by RPM before the date one (1) year from the date hereof.
2.2 Stockholders' Obligation to Furnish Information. It shall be a
condition precedent to the obligations of RPM to take any action pursuant to
Section 2 hereof that the Stockholders shall furnish to RPM such information
regarding them, the Registrable RPM Shares held by them, and the intended method
of disposition of such securities as RPM shall reasonably request and as shall
be required in connection with the action to be taken by RPM; provided, however,
that RPM shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 2.1 if the registration request is
subsequently withdrawn at the request of the selling Stockholders.
-7-
<PAGE> 8
2.3 Expenses of Registration. All expenses incurred in connection with
a registration pursuant to Section 2.1 (excluding underwriters' discounts and
commissions and brokerage or dealer commissions), including without limitation
all registration, qualification and filing fees, printers' and accounting fees,
and fees and disbursements of counsel for RPM, shall be borne by RPM; provided,
however, that RPM shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 2.1 if the registration
request is subsequently withdrawn at the request of the selling Stockholders.
2.4 Delay of Registration. No Stockholder shall have any right to take
any action to restrain, enjoin or otherwise delay any registration statement
under this Section 2 as the result of any controversy that might arise with
respect to the interpretation or implementation of this Section 2.
2.5 Indemnification. In the event any Registrable RPM Shares are
included in a registration statement under this Section 2:
2.5.1 Indemnification of Stockholders. To the extent permitted by
law, RPM will indemnify and hold harmless each Stockholder requesting or joining
in any registration statement under this Section 2, and each person, if any, who
controls such Stockholder within the meaning of the Act or the Securities
Exchange Act of 1934 (the "Exchange Act"), against any losses, claims, damages,
expenses (including reasonable costs of investigation) or liabilities, joint or
several, to which they may become subject under the Act or otherwise, insofar as
such losses,
-8-
<PAGE> 9
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based on any untrue or alleged untrue statement of any material fact
contained in such registration statement, including any Prospectus contained
therein or any amendments or supplements thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not
misleading, or arise out of any violation by RPM of any rule or regulation
promulgated under the Act applicable to RPM and relating to action or inaction
required by RPM in connection with any such registration; and will reimburse
each such Stockholder or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 2.5.1 shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of RPM (which consent shall not be
unreasonably withheld) nor shall RPM be liable in any such case for any such
loss, claim, damage, liability or action to the extent that it arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in connection with such registration statement, any
Prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Stockholder or controlling person. It is
expressly understood among the parties to this Securities
-9-
<PAGE> 10
Agreement that in no event shall RPM be obligated to agree to indemnify or
indemnify, in any respect, any underwriter, broker, dealer or other entity or
person effecting the sale, purchasing or otherwise distributing any of the
Registrable RPM Shares.
2.5.2 Indemnification of RPM. To the extent permitted by law, each
Stockholder requesting or joining in any registration statement under this
Section 2 will indemnify and hold harmless RPM, each of its directors, each of
its officers who have signed the registration statement, each person, if any,
who controls RPM within the meaning of the Act or the Exchange Act, and each
agent for RPM (within the meaning of the Act) against any losses, claims,
damages, expenses (including reasonable costs of investigation) or liabilities
to which RPM or any such director, officer, controlling person or agent may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages, expenses (including reasonable costs of investigation) or liabilities
(or actions in respect thereto) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in such
registration statement, including any Prospectus contained therein or any
amendments or supplements thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in such
registration statement, any Prospectus, or amendments or supplements thereof, in
reliance upon and in
-10-
<PAGE> 11
conformity with written information furnished by such Stockholder expressly for
use in connection with such registration; and each such Stockholder will
reimburse any legal or other expenses reasonably incurred by RPM or any such
director, officer, controlling person or agent in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this Section 2.5.2 shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of such Stockholder
(which consent shall not be unreasonably withheld).
2.5.3 Notification of and Participation in Claims. Promptly after
receipt by an indemnified party under this Section 2 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 2,
notify the indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties. The failure to notify an indemnifying party
promptly of the commencement of any such action, if prejudicial to his, her or
its ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 2, but the omission so to
notify the indemnifying party will not relieve him, her or it of
-11-
<PAGE> 12
any liability that he, she or it may have to any indemnified party otherwise
than under this Section.
2.6 Reports Under Exchange Act. With a view to making available to the
Stockholders the benefits of Rule 144 promulgated under the Act and any other
rule or regulation of the SEC that may at any time permit a Stockholder to sell
securities of RPM to the public without registration, RPM agrees to use its best
efforts to (i) make and keep public information available, as those terms are
understood and defined in Rule 144, (ii) file with the SEC in a timely manner
all reports and other documents required of the Company under the Act and the
Exchange Act, and (iii) furnish to any Stockholder so long as such Stockholder
owns any of the Registrable RPM Shares forthwith upon request a written
statement by RPM that it has complied with the reporting requirements of Rule
144 and of the Act and the Exchange Act, a copy of the most recent annual or
quarterly report of RPM, and such other reports and documents so filed by RPM as
may be reasonably requested in availing any Stockholder of any rule or
regulation of the SEC permitting the selling of any such securities without
registration.
2.7 Transfer of Registration Rights. The registration rights of the
Stockholders under this Section 2 may not be transferred to any third party,
however, they will inure to the benefit of the Stockholders' respective heirs
and personal representatives.
-12-
<PAGE> 13
3. Continuity of Interest; Continuity of Business Enterprise.
After having discussed with each other their intentions regarding
registration and sale of the Registrable RPM Shares, the Stockholders jointly
and severally represent and warrant to RPM that there is no present intention
among them to sell such number of the Registrable RPM Shares received by them in
the Reorganization as would result in their retaining, in the aggregate, such
number of Registrable RPM Shares as would have a value as of the time of the
Reorganization of less than 50% of the value of all of the issued and
outstanding shares of Simian immediately prior to the Reorganization. RPM and LS
Acquisition represent and warrant to the Stockholders that they have no present
plan or intention to discontinue the business of LS Acquisition or to cause LS
Acquisition to sell or distribute such of its assets or properties as would
result in a failure of LS Acquisition to hold substantially all of its assets or
properties immediately following the Reorganization.
4. Pooling-of-Interests Accounting.
Each Stockholder acknowledges and agrees that the Reorganization shall
be treated as a pooling-of-interests for accounting purposes and that such
Stockholder will not, in addition to any other restriction on transfer of RPM
Shares otherwise contained herein, sell or otherwise transfer any of the RPM
Shares received by such Stockholder pursuant to the Reorganization until such
time as financial results covering at least thirty (30) days of the combined
operations of Simian and RPM shall have been publicly announced by RPM within
the meaning of APB No. 16.
-13-
<PAGE> 14
5. Notice of Sale of RPM Shares.
For a period of three (3) years from the date hereof, in the event a
bona fide offer to purchase is made to or solicited by or on behalf of a
Stockholder relative to the private sale in one or a series of related
transaction(s) of all or substantially all of his, her or its Registrable RPM
Shares (hereinafter "Offer to Purchase"), such Stockholder shall notify RPM in
writing of the price per share and other terms of the Offer to Purchase and the
identity of the prospective purchaser or group of purchasers within five (5)
days of such Stockholder's receipt of the Offer to Purchase.
6. Miscellaneous.
6.1 Notices and Communications. Unless otherwise provided herein, any
notice or other communication under this Agreement shall be deemed to have been
duly given or made on the earlier of (i) the date of receipt or (ii) the date
when the same shall have been posted by certified or registered mail, return
receipt requested, in any post office in the United States of America, postage
prepaid and addressed to the party to whom such notice or other communication is
to be given or made at such party's address set forth below, or to such other
address as such party shall designate by written notice to the other parties, as
follows:
-14-
<PAGE> 15
If intended for RPM:
RPM, Inc.
P. O. Box 777
2628 Pearl Road
Medina, Ohio 44258
Attention: Frank C. Sullivan
with a copy to:
Calfee, Halter & Griswold
McDonald Investment Center
800 Superior Ave.
Suite 1800
Cleveland, Ohio 44114
Attention: Edward W. Moore, Esq.
If intended for the Stockholders:
Kenneth A. Haines
214 Pestana Drive
Santa Cruz, California 95065
- and -
Debby L. Haines
22025 Hutchinson Road
Los Gatos, California 95030
with a copy to:
Fenwick & West
Two Palo Alto Square
Eighth Floor
Palo Alto, California 94306
Attention: David W. Healy, Esq.
6.2 Governing Law. The validity, enforceability and construction of
this Agreement shall be governed by the laws of the State of Ohio.
6.3 Pronouns. The use of the feminine, masculine or neuter pronoun
shall not be restrictive as to gender and shall be interpreted in all cases as
the context may require.
6.4 Amendments; Successors. This Agreement may be amended only by an
agreement signed by all of the parties hereto
-15-
<PAGE> 16
and shall be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
6.5 Counterparts. This Agreement may be executed in any number of
counterparts, which may be separately executed by the parties hereto, each of
which shall be an original and all of which taken together shall constitute one
and the same instrument. In making proof of this Agreement it shall be necessary
to produce or account for only one such counterpart signed by or on behalf of
the party sought to be charged herewith.
6.6 Entire Agreement. This Agreement, except insofar as it refers to
the Reorganization Agreement or any of the other agreements or documents
referred to therein, contains the entire agreement and understanding of the
parties with respect to the subject matter hereof. No prior agreement, either
written or oral, shall be construed to change, amend, alter, repeal or
invalidate this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date and year first above mentioned.
RPM, INC.
/s/ Kenneth A. Haines By /s/ Frank C. Sullivan
- --------------------------- -----------------------
KENNETH A. HAINES Frank C. Sullivan
Its: Vice President and Chief
Financial Officer
/s/ Debby L. Haines
- ---------------------------
DEBBY L. HAINES
-16-
<PAGE> 1
EXHIBIT 5.1
[CALFEE, HALTER & GRISWOLD LETTERHEAD]
January 25, 1996
RPM, Inc.
2628 Pearl Road
Medina, Ohio 44258
In connection with the filing by RPM, Inc., an Ohio corporation (the
"Company"), with the Securities and Exchange Commission under the provisions of
the Securities Act of 1933, as amended, of a Registration Statement on Form S-3
with respect to 152,777 Common Shares, without par value, of the Company (the
"Shares"), to be sold by the selling shareholders named in the Registration
Statement (the "Selling Shareholders"), we have examined the following: (i) the
Amended Articles of Incorporation and Code of Regulations of the Company, as the
same are currently in effect; (ii) the form of Registration Statement on Form
S-3 (including Exhibits thereto) to be filed with the Securities and Exchange
Commission; and (iii) such other documents as we deemed it necessary to examine
as a basis for the opinions hereinafter expressed.
Based upon the foregoing, we are of the opinion that:
(i) The Company is incorporated and validly existing under the laws of
the State of Ohio.
(ii) The Shares to be sold by the Selling Shareholders in the manner
contemplated by the Registration Statement have been duly authorized and legally
issued, and are fully paid and nonassessable.
We are attorneys licensed to practice law in the State of Ohio. The
opinions expressed herein are limited solely to the laws of the State of Ohio
and we express no opinion under the laws of any other jurisdiction.
This opinion is delivered to you solely in connection with the filing
of the Registration Statement with respect to the Shares, and this letter and
the opinions stated herein may not be relied upon for any other purpose or by
any person other than the Directors and Officers of the Company.
We consent to the filing of this opinion with the Registration
Statement and to the use of our name therein under the caption "Validity of
Shares."
Respectfully submitted,
CALFEE, HALTER & GRISWOLD
<PAGE> 1
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-3 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 "EXPERTS" in the Prospectus.
/s/ CIULLA, SMITH & DALE LLP
-----------------------------------------
CIULLA, SMITH & DALE LLP
Cleveland, Ohio
January 25, 1996
<PAGE> 1
Exhibit 23.2
CONSENT OF
INDEPENDENT AUDITORS
We consent to the inclusion of our report dated February 28, 1995 with respect
to the consolidated balance sheets of Narragansett/DSI Acquisition Co., Inc.
("NDSI") and subsidiaries as of December 31, 1994 and 1993, and the related
consolidated statements of income, stockholder's equity and cash flows for each
of the years in the two-year period ended December 31, 1994, which report
appears in the Current Report on Form 8-K of RPM, Inc. dated July 24, 1995, as
amended by Form 8-K/A-1 dated September 18, 1995, and as amended by Form 8-K/A-2
dated October 6, 1995. We also consent to the incorporation by reference of such
report in RPM, Inc.'s Registration Statements on Form S-3 (Reg. No. 33-50868,
Liquid Yield Option No. 33-68222, Dynatron/Bondo Corporation acquisition, and
33-52235, Stonhard, Inc. acquisition) and Registration Statements on Form S-8
(Reg. No. 2-65508, 1979 Stock Option Plan, 33-32794, 1989 Stock Option Plan, and
33-54720, Retirement Savings Plan).
Our report dated February 28, 1995 contains an explanatory paragraph that states
NDSI'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
January 24, 1996
<PAGE> 1
EXHIBIT 24.1
RPM, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that RPM, Inc. hereby constitutes
and appoints Thomas C. Sullivan, James A. Karman, Paul A. Granzier and William
A. Papenbrock or any one or more of them, its attorneys-in-fact and agents, each
with full power of substitution and resubstitution for it in any and all
capacities, to sign any or all amendments or post-effective amendments to this
Registration Statement, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto each of such attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and necessary in
connection with such matters and hereby ratifying and confirming all that each
of such attorneys-in-fact and agents or his substitute or substitutes may do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, This Power of Attorney has been signed at
Cleveland, Ohio as of the 25th day of January, 1996.
RPM, INC.
By: /s/ James A. Karman
-----------------------
James A. Karman
President
<PAGE> 2
EXHIBIT 24.1 (continued)
RPM, INC.
CERTIFIED RESOLUTION
I, William A. Papenbrock, Assistant Secretary of RPM, Inc., an
Ohio corporation (the "Company"), do hereby certify that the following is a true
copy of a resolution adopted by the Board of Directors July 21, 1995, and that
the same has not been changed and remains in full force and effect.
RESOLVED: That Thomas C. Sullivan, James A. Karman, Paul A.
Granzier and William A. Papenbrock, be, and each of them hereby
is appointed as the attorney of the Company with full power of
substitution and resubstitution for and in the name, place and
stead of the Company to sign, attest and file a Registration
Statement on Form S-3 or any other appropriate form that may be
used from time to time, with respect to common shares of the
Company issued in connection with the Merger and any and all
amendments, post-effective amendments and exhibits to such
Registration Statement and any and all applications or other
documents to be filed with the Securities and Exchange Commission
and any and all applicable applications or other documents in
connection with inclusion on the NASDAQ Stock Market of the RPM
Shares or any and all applications or other documents to be filed
with any governmental or private agency or official relative to
the issuance of said RPM Shares, with full power and authority to
do and perform any and all acts and things whatsoever requisite
and necessary to be done in the premises, hereby ratifying and
approving the acts of such attorneys or any such substitute or
substitutes and, without implying limitation, including in the
above the authority to do the foregoing things on behalf of the
Company in the name of any duly-authorized officer of the
Company; and the Chairman of the Board and Chief Executive
Officer of the Company or the President and Chief Operating
Officer be, and they hereby are authorized for and on behalf of
the Company to execute a Power of Attorney evidencing the
foregoing appointments.
RPM, INC.
By: /s/ William A. Papenbrock
----------------------------
William A. Papenbrock,
Assistant Secretary
Date: January 25, 1996
