<PAGE> 1
As filed with the Securities and Exchange Commission on July 16, 1996
Registration No. 333-
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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 (330) 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
(330) 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...................................... $32,646,875 $11,258
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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 July 10, 1996.
<PAGE> 2
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> 3
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.
Subject to Completion, Dated July 16, 1996
PROSPECTUS
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RPM, INC.
2,106,250
COMMON SHARES
(without par value)
This Prospectus relates to the offer and sale of 2,106,250 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 System under the symbol "RPOW." On July 10, 1996 the last reported sale
price for the Common Shares was $15.50 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 July , 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 (330) 273-5090. As used in this Prospectus, the "Company" shall refer
to RPM, Inc. and its consolidated subsidiaries, unless the context indicates
otherwise.
CURRENT DEVELOPMENTS
ACQUISITION OF OKURA HOLDINGS, INC.
On May 17, 1996, the Company entered into a Stock Purchase
Agreement with the stockholders of Okura Holdings, Inc., a Delaware Corporation
("Okura"), with respect to the purchase by the Company of all of the issued and
outstanding shares of capital stock of Okura. The closing of the transaction was
completed on June 12, 1996, at which time Okura became a wholly owned subsidiary
of RPM.
Okura is a global manufacturer and marketer of molded and
pultruded fiberglass reinforced plastic ("FRP") grating products. With sales of
approximately $35 million, Okura's products are used for pedestrian walkways,
platforms, staircases and similar types of industrial structures. Okura's
products are manufactured domestically at facilities located in Stephenville,
Texas, Piney Flats, Tennessee and Woodinville, Washington. Overseas
manufacturing operations of Okura are located in Shanghai, China and Terneuzen,
Holland. Okura's executive headquarters are located in Dallas, Texas.
RISK FACTOR
One of the Company's wholly owned subsidiaries, Dryvit Systems,
Inc. ("Dryvit") 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 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.
Dryvit 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. Dryvit 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.
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. The Commission maintains an internet
site, located at http://www.sec.gov, that contains reports, proxy and
information statements and other information regarding registrants, including
the Company, that file electronically with the Commission.
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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 (330) 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, November 30, 1995 and February 29, 1996;
(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 January 11, 1996 in connection with the merger (the "Merger") of
RPM of Georgia, Inc., a Georgia corporation and a direct, wholly owned
subsidiary of the Company with and into TCI, Inc., a Georgia corporation
("TCI"), whereby TCI became a wholly owned subsidiary of the Company. In
connection with the Merger, the shareholders of TCI received, in the aggregate,
2,106,250 Common Shares of the Company. The 2,106,250 Common Shares owned by the
Selling Shareholders represent all of the Common Shares presently owned by them.
The following table shows as to each Selling Shareholder the
number of Common Shares owned by each Selling Shareholder prior to this offering
and the number of Common Shares being registered hereby:
<TABLE>
<CAPTION>
Shares Number
owned of
prior to Shares
Name offering registered
- ---- -------- ----------
<S> <C> <C>
J. Myron Wells................................................ 842,500 842,500
Linda C. Slade................................................ 737,187 737,187
Joseph J. Slade............................................... 421,250 421,250
Douglas G. Greene............................................. 105,313 105,313
-------- -------
Total..................... 2,106,250 2,106,250
========= =========
</TABLE>
In connection with the Merger, the Selling Shareholders and Thomas H.
Slade III, the spouse of Linda C. Slade and President of TCI, entered into
Noncompetition Agreements with TCI.
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<PAGE> 6
Securities Agreement
- --------------------
Under the terms of a Securities Agreement dated January 11,
1996 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 2,106,250 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 2,106,250 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 this Prospectus, the Company
is unaware of any plans or intentions of the Selling Shareholders with respect
to the amount of Common Shares any of them desire to sell or when any of the
Selling Shareholders would desire to sell their Common Shares except that,
depending on market conditions, the Selling Shareholders may sell an as yet
undetermined number of Common Shares for the purposes of investment
diversification.
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 77,448,942 shares outstanding as of May 31, 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.
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The holder of each Common Share is entitled to one vote on all
matters submitted to shareholders generally, except that shareholders have the
right to cumulate their votes for the election of Directors as permitted by Ohio
law. The Board of Directors is divided into three Classes with the term of
office of one of such Classes expiring in each year. At each Annual Meeting of
Shareholders the successors to the Directors of the Class whose term is expiring
at that time are elected to hold office for a term of three years.
Classification of the Board of Directors increases the number of Common Shares
necessary under cumulative voting to elect a Director in any given year. Subject
to the provisions of Articles Seventh and Eighth of the Company's Amended
Articles, as hereinafter summarized, all matters submitted to a vote of
shareholders are determined by a vote of the holders of a majority of the
outstanding shares entitled to vote thereon present in person or by proxy at a
meeting at which the vote was taken.
Article Seventh of the Company's Amended Articles provides, in
essence, that proposals (i) with respect to a merger, consolidation or
acquisition wherein the existing shareholders of the Company would hold less
than two-thirds of the voting power of the Company, or of the surviving or new
corporation, immediately after consummation of the transaction, and (ii) with
respect to a sale of substantially all of the assets of the Company, both
require adoption or approval by holders of shares representing two-thirds of the
voting power of the Company.
Article Eighth of the Company's Amended Articles provides, in
essence, that the affirmative vote of the holders of shares representing at
least 80% of the voting power of the Company is required to effect a merger,
consolidation, sale, lease or exchange of substantially all of the assets of the
Company where the other party to the transaction, including its "affiliates" and
"associated persons," as defined, is a holder, directly or indirectly, of 5% or
more of the outstanding shares of any class of the Company entitled to vote at a
meeting called to consider such a proposed transaction, as of the record date
used to determine the shareholders entitled to vote upon such transaction. The
Board of Directors, acting in good faith, shall make a conclusive determination
as to whether the proposed transaction requires an 80% vote of shareholders. The
requirement for approval by an 80% vote shall not be applicable to proposals
which received the formal approval of the Board of Directors of the Company
prior to the acquisition of the 5% share interest by the other party, provided
that with respect to any proposed transaction as to which the 80% voting
requirement would otherwise be applicable there also has been a disclosure to
all shareholders of any inducements in connection with the proposed transaction
offered to officers and Directors of the Company which are not extended to all
shareholders.
Ohio Law
- --------
As an Ohio corporation, the Company is subject to certain
provisions of Ohio law which may discourage or render more difficult an
unsolicited takeover of the Company. Among these are provisions that (i)
prohibit certain mergers, sales of assets, issuances or purchases of securities,
liquidation or dissolution, or reclassifications of the then outstanding shares
of an Ohio corporation involving certain holders of stock representing 10% or
more of the voting power, unless such transactions are either approved by the
Directors in office prior to the 10% shareholder becoming such or involve a 10%
shareholder which has been such for at least three years and certain
requirements related to the price and form of consideration to be received by
shareholders are met; and (ii) 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.
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<PAGE> 8
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 May 31,
1996 beneficially owned 11,466 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 Narragansett/DSI Acquisition Co. Inc.,
a wholly owned subsidiary of the Company, 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 uncertainty. The consolidated financial statements referred
to above are incorporated herein by reference in reliance upon such report and
upon the authority of such firms as experts in accounting and auditing.
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<PAGE> 9
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS.
Item 14. Other Expenses of Issuance and Distribution.
--------------------------------------------
The following table sets forth the estimated expenses payable by the
Registrant in connection with the sale and distribution of the Common Shares
registered hereby:
<TABLE>
<S> <C>
SEC Registration Fee................................ $ 11,258
Fees and Expenses of Counsel........................ 7,500
Miscellaneous....................................... 1,242
-----------
Total..................................... $ 20,000
===========
</TABLE>
Item 15. Indemnification of Directors and Officers.
------------------------------------------
Ohio Revised Code ss.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 January 11, 1996 by and among the
Registrant and the Selling Shareholders provides that each of the Selling
Shareholders will, in connection with any Registration Statement filed by the
Registrant on behalf of such Selling Shareholders, indemnify the Registrant, its
Directors, officers, each person, if any, who controls the Registrant and each
agent for the Registrant (within the meaning of the Securities Act) against
certain liabilities arising out of the Registration Statement and the related
Prospectus. Such Securities Agreement is filed as Exhibit 4.4. to this
Registration Statement and is incorporated herein by reference thereto.
Item 16. Exhibits.
---------
See the Exhibit Index at page E-1 of this Registration Statement.
Item 17. Undertakings.
-------------
(1) The undersigned Registrant hereby undertakes:
(a) To file, during the period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
II-1
<PAGE> 10
(ii) To reflect in the prospectus any facts or event arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(2) The undersigned Registrant hereby undertakes that for the purpose
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted for Directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a Director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such Director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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<PAGE> 11
SIGNATURES
----------
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED IN THE CITY OF CLEVELAND AND STATE OF OHIO, ON THE 15TH DAY OF
JULY, 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 15TH DAY OF JULY, 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 Executive Vice President and Chief
- ------------------------------ Financial Officer
Frank C. Sullivan (principal financial officer) and a Director
/s/ Glenn R. Hasman Vice President, Administration
- ------------------------------ (principal accounting officer)
Glenn R. Hasman
</TABLE>
II-3
<PAGE> 12
<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
</TABLE>
II-4
<PAGE> 13
RPM, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION OF DOCUMENT PAGE NUMBER
- ------ ----------------------- -----------
<S> <C> <C>
4.1 Amended Articles of Incorporation, as amended, of the Registrant (A)
4.1.1 Amendment to Articles of Incorporation, as filed with the Ohio (B)
Secretary of State on October 9, 1992
4.2 Amended Code of Regulations of the Registrant (C)
4.3 Specimen Certificate of Common Shares, without par value, of the Registrant (D)
4.4 Securities Agreement dated January 11, 1996 by and among the Registrant and the
shareholders of TCI, 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
99.1 Ohio Revised Code Section.1701.13(E), pertaining to indemnification of Directors (F)
and officers
99.2 Article VI of the Registrant's Amended Code of Regulations (F)
99.3 Directors and Officers Liability Insurance Policy (F)
99.4 Form of Indemnification Agreement between the Registrant and each (F)
of its Directors and executive officers
- ------------------------
<FN>
(A) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the fiscal year ended May
31, 1984 and the appropriate exhibit to the Registrant's Annual Report
on Form 10-K for the fiscal year ended May 31, 1987.
(B) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Statement on Form S-3 (Reg. No. 33-50868).
(C) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the fiscal year ended May
31, 1988.
</TABLE>
E-1
<PAGE> 14
(D) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Registration Statement on Form S-3 (Reg. No. 33-39849).
(E) Set forth on the signature pages to this Registration Statement.
(F) 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 11th day of January, 1996 by
and among RPM, INC., an Ohio corporation ("RPM"), J. MYRON WELLS, LINDA C.
SLADE, JOSEPH J. SLADE, and DOUGLAS G. GREENE, the shareholders
("Shareholder(s)") of TCI, INC., a Georgia corporation ("TCI").
WITNESSETH:
WHEREAS, RPM and Shareholders have entered into an Agreement
and Plan of Reorganization of even date herewith ("Reorganization Agreement")
pursuant to which Shareholders are receiving RPM Common Shares, without par
value ("RPM Shares"), in exchange for their shares of Common Stock, $1.00 par
value per share, in TCI (the TCI shares are herein referred to as the "TCI
Shares" and the reorganization is herein referred to as the "Reorganization");
and
WHEREAS, RPM and Shareholders have agreed that the issuance of
the RPM Shares and the issuance of the TCI 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 (the "Act") and Rule 506 promulgated pursuant to the Act;
and
WHEREAS, RPM and Shareholders have agreed that the issuance of
the RPM Shares shall be exempt from Georgia registration under O.C.G.A.
ss.10-5-8(8.1) and the issuance of the TCI Shares shall be exempt from Georgia
registration under O.C.G.A. ss.10-5-9(13); and
<PAGE> 2
WHEREAS, RPM and Shareholders have further agreed that
Shareholders shall have, under the terms and conditions herein set forth, the
right to require or cause RPM to register the RPM shares received by such
Shareholders (the "Registrable RPM Shares") with the SEC; and
WHEREAS, Shareholders also desire that the Reorganization be
treated as a tax-free reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986; and
WHEREAS, RPM also desires that the Reorganization be
treated as a pooling-of-interest for accounting purposes;
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants and agreements contained herein and in the
Reorganization Agreement, RPM and Shareholders hereby agree as
follows:
1. EXEMPTION FROM REGISTRATION UNDER SECTION 4(2) AND RULE 506.
------------------------------------------------------------
In connection with each Shareholders' investment in the
Registrable RPM Shares, each Shareholder hereby represents, warrants, covenants
and agrees as follows:
1.1 ACCREDITED INVESTOR. Each Shareholder 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. Shareholders
Linda C. Slade, Joseph J. Slade, and Douglas G. Greene each hereby appoint J.
Myron Wells as their purchaser representative, and J. Myron Wells hereby accepts
such appointment and agrees to act in good
2
<PAGE> 3
faith on behalf of such Shareholders appointing him in his capacity
as purchaser representative.
1.2 INFORMATION RECEIVED. Each Shareholder, 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, 1995, (ii) Proxy
Statement for the October 12, 1995 Annual Meeting of RPM shareholders, (iii)
Annual Report on Form 10-K for the fiscal year ended May 31, 1995, as filed with
the SEC, (iv) a Quarterly Report on Form 10-Q for the fiscal quarter ended
August 31, 1995, as filed with the SEC, (v) Amendment No. 2 to Form S-3
Registration Statement, Registration No. 33-61513, dated September 18, 1995,
(vi) Amendment No. 2 to Form S-4 Registration Statement, Registration No.
33-61541, dated October 6, 1995, (vii) Form 8-K Current Report dated July 24,
1995, as amended, (viii) a brief description of the RPM Shares being offered,
(ix) 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, (x) a
description of the terms or arrangements materially different from those for
other TCI Shareholders, which description (unless described in the
Reorganization Agreement) is included in the copy of the letter attached hereto
as Exhibit A. No Shareholder has made a written request to RPM that it make
available to him or her any exhibits to any of the documents listed in clauses
(i) - (vii) above. Each Shareholder, directly or through his or her purchaser
representative, has had at a reasonable time prior to the date of this Agreement
the opportunity
3
<PAGE> 4
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 Shareholder has deemed
necessary to verify the accuracy of the information furnished pursuant to this
Section 1.2.
1.3 LIMITATIONS ON RESALE. Each Shareholder is aware that the
Registrable RPM Shares have not been registered under the Act and that he or she
must hold such shares indefinitely unless they are subsequently registered under
the Act or an exemption from such registration is available. Each Shareholder 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 Shareholder 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 Shareholder acknowledges and agrees
that the certificates representing the Registrable RPM Shares to be received by
him or her shall bear a legend stating the substance of such restrictions, as
well as those provisions of
4
<PAGE> 5
Section 5 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 Shareholder further acknowledges that prior to execution and
delivery of this Agreement he or she received a written disclosure of the
foregoing limitations on resale of the Registrable RPM Shares and of the facts
that the certificates representing such shares will bear the above-referenced
legend and that the above-referenced stop transfer instructions will be issued
as necessary. RPM agrees to cause the restrictive legend referred to above to be
removed from RPM Share Certificates for any Shareholder who qualifies under Rule
144(k).
1.4 INVESTMENT DECISION. Based upon the information delivered
to each Shareholder 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 Shareholder 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.
In connection with RPM's investment in the TCI Shares, RPM
hereby represents, warrants, covenants, and agrees as follows:
1.5 ACCREDITED INVESTOR. RPM is an "Accredited
Investor" as defined in Rule 501 promulgated pursuant to the Act.
1.6 MANNER OF OFFERING. The TCI Shares were not
purchased as a result of or by means of any form of general or
public solicitations or advertisements.
5
<PAGE> 6
1.7 INVESTMENT INTENT. RPM has purchased the TCI Shares
for investment for its own account, with the intent of holding the
TCI Shares for investment and without the intent of participating
directly or indirectly in a distribution of the TCI Shares.
1.8 LIMITATIONS ON RESALE.
----------------------
(a) RPM is aware that the TCI Shares have not been registered
under the Act and that it must hold such shares indefinitely unless they are
subsequently registered under the Act or an exemption from such registration is
available. RPM is also aware that any sales of the TCI 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 TCI satisfies the requirements therefor. RPM is acquiring the TCI Shares
for its own account, for investment and not with a view to the distribution
thereof and will not sell, transfer or otherwise dispose of the TCI Shares
unless a registration statement filed with the SEC pursuant to the Act with
respect thereto is in effect or TCI shall have received an opinion of counsel
reasonably satisfactory to it to the effect that such registration is not
required. RPM acknowledges and agrees that the certificates representing the TCI
Shares to be received by it shall bear a legend stating the substance of such
restrictions, and that TCI may issue stop transfer instructions to the transfer
agent of TCI Shares to preclude any transfer in violation of such restrictions.
RPM further acknowledges that prior to execution and delivery of this Agreement
it received a written disclosure of the foregoing limitations on resale of the
TCI Shares and of the facts
6
<PAGE> 7
that the certificates representing such shares will bear the above-referenced
legend and that the above-referenced stop transfer instructions will be issued
as necessary. TCI agrees to cause the restrictive legend referred to above to be
removed from TCI Share Certificates for any shareholder who qualifies under Rule
144(k).
(b) RPM agrees that the certificates representing the
TCI Shares shall contain substantially the following legend:
THESE SECURITIES HAVE BEEN ISSUED OR SOLD IN RELIANCE OF
PARAGRAPH (13) OF CODE SECTION 9 OF THE "GEORGIA SECURITIES
ACT OF 1973," AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A
TRANSACTION WHICH IS EXEMPT UNDER SUCH ACT OR PURSUANT TO AN
EFFECTIVE REGISTRATION UNDER SUCH ACT.
2. REGISTRATION RIGHTS.
--------------------
2.1 SHELF REGISTRATION RIGHTS. From and after the date RPM
publicly announces financial results covering at least thirty (30) days of
combined operations of RPM and TCI as described in Section 5 of this Agreement,
if RPM shall receive a written request (or has previously received a written
request which has not been revoked) from Shareholders owning more than 25% of
the Registrable RPM Shares 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 Shareholders of such request
giving them not less than twenty (20) days to request to include all or any
portion of their Registrable RPM Shares in such registration and shall cause all
Registrable RPM Shares that Shareholders have requested be registered to be
registered under the Act in a registration
7
<PAGE> 8
intended to permit the offering of the Registrable RPM Shares from time to time
(the "Shelf Registration Statement"). Whenever requested under this Section 2.1
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 cause
such registration statement to become and remain effective; 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 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, (iii) furnish to Shareholders 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) register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably appropriate for the
distribution of the securities covered by the registration statement, provided
that RPM shall not be required in connection therewith or as a condition thereto
to qualify to do business or to
8
<PAGE> 9
file a general consent to service of process in any such states or
jurisdictions. RPM shall be obligated to effect only a maximum of two (2) Shelf
Registration Statements pursuant to this Section 2.1 and shall have no
obligation with respect to any request for registration made by any Shareholder
pursuant hereto unless such request is received by RPM before the date two (2)
years from the date hereof. Notwithstanding anything to the contrary contained
in this Section 2.1, RPM's obligation to cause any Registrable RPM Shares to be
registered under the Act shall be limited by any technical or legal reasons
preventing such registration, such as a pending acquisition of another
corporation, the unavailability of required audited financial statements, or
other similar substantial reasons. In addition, RPM shall retain sole discretion
in responding to Securities and Exchange Commission staff comments with respect
to registering the Registrable RPM Shares under the Act and shall not be
required to agree to any staff comments which RPM reasonably believes are not
applicable to it or would be materially detrimental to its ongoing business.
2.2 RPM REGISTRATION; SHAREHOLDERS' "PIGGYBACK" REGISTRATION
RIGHTS. If at any time RPM shall file with the SEC a registration statement
under the Act with respect to a public offering by RPM of any equity securities
other than a registration on Form S-4 or S-8 or any successor form to such forms
or filed in connection with an exchange offer or an offering of securities
solely to the existing shareholders or employees of RPM and the form of such
registration statement may be used under the Act with respect to a public
offering of the Registrable RPM Shares by the
9
<PAGE> 10
holders thereof, RPM will, at least thirty (30) days prior to filing such
registration statement, notify the Shareholders of such Registrable RPM Shares
in writing of its intention to make such filing. Upon the written request by
each Shareholder given within twenty (20) days after mailing of such notice by
RPM in accordance with Section 7.1 hereof, RPM shall, subject to the provisions
of Section 3 hereof, cause to be registered under the Act all the Registrable
RPM Shares that each such Shareholder has requested to be registered. RPM shall
have the right to terminate or withdraw any registration initiated by it under
this Section 2.2 prior to the effectiveness of such registration without any
liability to Shareholders who would have participated in such registration in
the event it had not been terminated or withdrawn by RPM. Whenever required
under this Section 2.2 to effect the registration of any Registrable RPM Shares,
RPM shall, as expeditiously as reasonably possible (i) prepare and file with the
SEC a registration statement with respect to such Registrable RPM Shares and use
its best efforts to cause such registration statement to become and remain
effective; provided, however, RPM shall in no event be obligated to cause any
such registration to remain effective for more than ninety (90) days, or such
shorter period as is required to dispose of all securities covered by such
registration statement, (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, (iii) furnish to
10
<PAGE> 11
Shareholders such numbers of copies of a Prospectus in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of the Registrable RPM Shares owned by
them, and (iv) use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably appropriate for the
distribution of the securities covered by the registration statement, provided
that RPM shall not be required in connection therewith or as a condition thereto
to register any of the Registrable RPM Shares under any securities laws of any
state in which RPM is not otherwise registering its securities in connection
with such registration or to qualify to do business or to file a general consent
to service of process in any state or jurisdiction. To the extent that all
Registrable RPM Shares desired to be sold in connection with a registration
pursuant to this Section 2.2 are not included in the registration statement in
accordance with Section 3 hereof, then the Registrable RPM Shares to be included
in the registration statement shall be determined on a pro rata basis based upon
the number of shares sought to be included in the registration statement by
holders of piggyback registration rights with respect to RPM securities. No
securities requested to be included in such registration statement by a holder
of RPM securities who does not possess piggyback registration rights with
respect thereto shall be included in such registration statement unless all
Registrable RPM shares sought to be sold are included therein.
11
<PAGE> 12
2.3 SHAREHOLDERS' 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 Shareholders 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 Shareholders.
2.4 EXPENSES OF REGISTRATION. All expenses incurred in
connection with a registration pursuant to Section 2.1 or 2.2 (excluding
underwriters' discounts and commissions and brokerage or dealer commissions or
fees and expenses of legal or other counsel to Shareholders), including without
limitation all registration and qualification 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 Shareholders.
2.5 DELAY OF REGISTRATION. No Shareholder 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.
12
<PAGE> 13
2.6 INDEMNIFICATION. In the event any Registrable RPM
Shares are included in a registration statement under this
Section 2:
2.6.1 INDEMNIFICATION OF SHAREHOLDERS. To the
extent permitted by law, RPM will indemnify and hold harmless each Shareholder
requesting or joining in any registration statement under this Section 2, and
each person, if any, who controls such Shareholder within the meaning of the
Act, against any losses, claims, damages or liabilities, joint or several, to
which they may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based on any untrue or alleged untrue statement of any material fact
contained in such registration statement, including any Prospectus contained
therein or any amendments or supplements thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not
misleading, or arise out of any violation by RPM of any rule or regulation
promulgated under the Act applicable to RPM and relating to action or inaction
required by RPM in connection with any such registration; and will reimburse
each such Shareholder 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 2.6.1 shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without
13
<PAGE> 14
the consent of RPM (which consent shall not be unreasonably withheld) nor shall
RPM be liable in any such case for any such 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 information furnished expressly
for use in connection with such registration by any such Shareholder or
controlling person. It is expressly understood among the parties to this
Securities Agreement that in no event shall RPM be obligated to agree to
indemnify or indemnify, in any respect, any underwriter, broker, dealer or other
entity or person effecting the sale, purchasing or otherwise distributing any of
the Registrable RPM Shares.
2.6.2 INDEMNIFICATION OF RPM. To the extent
permitted by law, each Shareholder 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, and each agent
for RPM (within the meaning of the Act) against any losses, claims, damages or
liabilities to which RPM or any such directors, officers, controlling person or
agent may become subject, under the Act or otherwise insofar as such losses,
claims, damages 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
14
<PAGE> 15
contained therein or any amendments or supplements thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in such registration statement, any Prospectus, or amendments or supplements
thereof, in reliance upon and in conformity with information furnished by such
Shareholder for use in connection with such registration; and each such
Shareholder 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 2.6.2 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 Shareholder (which consent shall not be unreasonably withheld).
2.6.3 NOTIFICATION OF AND PARTICIPATION IN CLAIMS.
Promptly after receipt by an indemnified party 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, 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
15
<PAGE> 16
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 ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section, but the omission so to notify the
indemnifying party will not relieve him of any liability that he may have to any
indemnified party otherwise than under this Section.
2.7 REPORTS UNDER EXCHANGE ACT. With a view to making
available to Shareholders 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
Shareholder 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 Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and (iii) furnish to any Shareholder so long as such
Shareholder 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 Shareholder of any rule or
regulation of the SEC permitting the selling of any such securities without
registration.
16
<PAGE> 17
2.8 TRANSFER OF REGISTRATION RIGHTS. The registration rights
of Shareholders under this Section 2 may not be transferred to any third party,
however, they will inure to the benefit of Shareholders' respective heirs and
personal representatives.
3. UNDERWRITING REQUIREMENTS.
--------------------------
If the total amount of Registrable RPM Shares requested by
Shareholders to be included in any registration pursuant to the provisions of
Section 2.2 hereof exceeds the amount of securities which the managing
underwriter reasonably and in writing believes to be compatible with the success
of the offering, then RPM shall be required to include in the offering only that
number of Registrable RPM Shares which the underwriters believe will not
jeopardize the success of the offering (the securities so included to be
apportioned pro rata between Shareholders according to the total amount of
securities requested to be included therein owned by each Shareholder or in such
other proportions as shall mutually be agreed to by Shareholders).
4. CONTINUITY OF INTEREST; CONTINUITY OF BUSINESS ENTERPRISE.
----------------------------------------------------------
After having discussed with each other their intentions
regarding registration and sale of the Registrable RPM Shares, Shareholders
jointly and severally represent and warrant to RPM and to each other 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 TCI
17
<PAGE> 18
immediately prior to the Reorganization. RPM represents and warrants to
Shareholders that it has no present plan or intention to discontinue the
business of TCI or to cause TCI to sell or distribute such of its assets or
properties as would result in a failure of TCI to hold substantially all of its
assets or properties immediately following the Reorganization.
5. POOLING-OF-INTERESTS ACCOUNTING.
--------------------------------
Each Shareholder acknowledges and agrees that RPM intends that
the Reorganization shall be accounted for on a pooling-of-interests basis and
that such Shareholder 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 Shareholder pursuant to the Reorganization until
such time as financial results covering at least thirty (30) days of the
combined operations of TCI and RPM shall have been published by RPM in a Form
10-Q filed with the SEC, which shall not be later than April 15, 1996.
6. 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
Shareholder relative to the private sale in one or a series of related
transaction(s) of all or substantially all of his Registrable RPM Shares
(hereinafter "Offer to Purchase"), such Shareholder 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
Shareholder's receipt of the Offer to Purchase.
18
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7. MISCELLANEOUS.
--------------
7.1 NOTICES AND COMMUNICATIONS. Unless otherwise provided
herein, any notice or other communication under this Agreement shall be deemed
to have been duly given or made on the earlier of (i) the date of receipt or
(ii) the date when the same shall have been posted by certified or registered
mail, return receipt requested, in any post office in the United States of
America, postage prepaid and addressed to the party to whom such notice or other
communication is to be given or made at such party's address set forth below, or
to such other address as such party shall designate by written notice to the
other parties, as follows:
If intended for RPM:
RPM, Inc.
P.O. Box 777
2628 Pearl Road
Medina, Ohio 44258
Attention: Thomas C. Sullivan
with a copy to:
Calfee, Halter & Griswold
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114-2688
Attention: William A. Papenbrock, Esq.
If intended for the Shareholders:
J. Myron Wells
P.O. Box 456
Ellaville, GA 31806
Linda C. Slade
8240 Merganser Drive
Ponte Verda Beach, FL 32082
19
<PAGE> 20
Joseph J. Slade
151 West Shore Drive
Americus, GA 31709
Douglas G. Greene
603 South Lee Street
Americus, GA 31709
with a copy to:
Sprouse, Tucker & Ford
1925 First Avenue
Columbus, Georgia 31901
Attention: Charles H. Ford, Jr., Esq.
7.2 GOVERNING LAW. The validity, enforceability and
construction of this Agreement shall be governed by the laws of the
State of Ohio.
7.3 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.
7.4 AMENDMENTS: SUCCESSORS. This Agreement may be
amended only by an agreement signed by all of the parties hereto
and shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted
assigns.
7.5 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.
20
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7.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES:
LIMITATION OF LIABILITY.
(i) The representations and warranties of Shareholders
contained in this Agreement shall survive the Closing of the Reorganization
Agreement only as provided in Section 4.4 of the Reorganization Agreement; and
(ii) RPM agrees that the liability of each Shareholder under
this Agreement shall be limited as set forth in Section 5.1 of the
Reorganization Agreement.
7.7 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.
21
<PAGE> 22
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date and year first above written.
RPM, INC.
/S/ J. MYRON WELLS By /S/ THOMAS C. SULLIVAN
- ----------------------------------- -----------------------------
J. MYRON WELLS Thomas C. Sullivan,
Chairman
/S/ LINDA C. SLADE
- -----------------------------------
LINDA C. SLADE
/S/ JOSEPH J. SLADE
- -----------------------------------
JOSEPH J. SLADE
/S/ DOUGLAS G. GREENE
- -----------------------------------
DOUGLAS G. GREENE
22
<PAGE> 1
Exhibit 5.1
July 15, 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
(the "Registration Statement") with respect to 2,106,250 Common Shares, without
par value, of the Company (the "Shares") to be sold by the selling shareholders
named in the Registration Statement (the "Selling Shareholders"), we have
examined the following: (i) the Amended Articles of Incorporation and Code of
Regulations of the Company, as the same are currently in effect; (ii) the form
of Registration Statement on Form S-3 (including Exhibits thereto) to be filed
with the Securities and Exchange Commission; and (iii) such other documents as
we deemed it necessary to examine as a basis for the opinions hereinafter
expressed.
Based upon the foregoing, we are of the opinion that:
(i) The Company is incorporated and validly existing under the laws of
the State of Ohio.
(ii) The Shares to be sold by the Selling Shareholders in the manner
contemplated by the Registration Statement have been duly authorized and legally
issued, and are fully paid and nonassessable.
We are attorneys licensed to practice law in the State of Ohio. The
opinions expressed herein are limited solely to the laws of the State of Ohio
and we express no opinion under the laws of any other jurisdiction.
This opinion is delivered to you solely in connection with the filing
of the Registration Statement with respect to the Shares, and this letter and
the opinions stated herein may not be relied upon for any other purpose or by
any person other than the Directors and officers of the Company.
We consent to the filing of this opinion with the Registration
Statement and to the use of our name therein under the caption "Validity of
Shares."
Respectfully submitted,
/s/ CALFEE, HALTER & GRISWOLD
----------------------------------
CALFEE, HALTER & GRISWOLD
E-3
<PAGE> 1
Exhibit 23.2
CONSENT OF
INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
July 7, 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
June 26, 1996
<PAGE> 1
Exhibit 23.3
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 Notes, No. 33-68222, Dynatron/Bondo Corporation acquisition,
33-52235, Stonhard, Inc. acquisition, and 333-00453, Simian Company, 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
July 8, 1996
