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As filed with the Securities and Exchange Commission on September 19, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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RPM, INC.
(Exact Name of Registrant as Specified in its Charter)
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Ohio 34-6550857
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
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2628 Pearl Road
P.O. Box 777
Medina, Ohio 44258
(Address of Principal Executive Offices, including Zip Code)
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RPM, INC. 1996 KEY EMPLOYEES STOCK OPTION PLAN
(Full Title of the Plan)
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Thomas C. Sullivan With a copy to:
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Chairman and Chief Executive Officer William A. Papenbrock, Esq.
RPM, Inc. Calfee, Halter & Griswold LLP
2628 Pearl Road 1400 McDonald Investment Center
P.O. Box 777 800 Superior Avenue
Medina, Ohio 44258 Cleveland, Ohio 44114
(330) 273-5090 (216) 622-8200
(Name, Address and Telephone Number, including
Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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Amount Proposed maximum Proposed maximum Amount of
Title of securities to be offering price aggregate offering registration
to be registered registered per share (1) price (1) fee
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Common Shares, without par value 3,600,000 (2) $20.00 $72,000,000 $21,819
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(1) Estimated in accordance with Rule 457(c) solely for the purpose of calculating the registration fee and based
upon the average of the high and low sales prices of the Common Shares of RPM, Inc. reported on the Nasdaq
National Market on September 18, 1997.
(2) The 3,600,000 Common Shares being registered are issuable upon exercise of options to be granted pursuant to
the RPM, Inc. 1996 Key Employees Stock Option Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents of RPM, Inc. (the "Company"), previously filed
with the Securities and Exchange Commission, are incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended May 31, 1997;
2. The description of the Company's Common Shares, without par value
(the "Common Shares"), contained in the Company's Registration
Statement on Form 8-A, dated September 28, 1970 (File No.
0-5132), and any amendments and reports filed for the purpose of
updating that description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of the filing of such documents, other than the
portions of such documents which by statute, by designation in such documents or
otherwise, are not deemed to be filed with the Commission or are not required to
be incorporated herein by reference.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded, for purposes of this Registration Statement, to the
extent that a statement contained in this Registration Statement, or in any
other subsequently filed document that also is, or is deemed to be, incorporated
by reference in this Registration Statement, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
William A. Papenbrock, a partner of Calfee, Halter & Griswold LLP, is
the Company's Assistant Secretary and a Director of the Company, and as of June
30, 1997 beneficially owned 11,821 Common Shares.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Ohio Revised Code sec.1701.13(E) 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, or is or was serving at the request of the corporation
in a similar capacity with another corporation or enterprise, 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 Company's Amended Code of Regulations provides for
the indemnification of Directors and officers against certain liabilities to the
maximum extent permitted by Ohio law.
The Company has purchased a Directors and Officers Liability Insurance
Policy, which insures the Directors and officers of the Company against certain
liabilities incurred in the performance of their duties.
As of July 20, 1990, the Registrant 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. In the Indemnification Agreements, the
Company 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 Company's Code of Regulations, the Ohio
Revised Code, or by any amendment(s) thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
See the Exhibit Index at Page E-1 of this Registration Statement.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any 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 events 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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high and of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set for the in the
"Calculation of Registration Fee" table in the effective
Registration Statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3, Form S-8,
or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes 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) or 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
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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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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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cleveland, State of Ohio, on this 19th day of
September, 1997.
RPM, INC.
By: /s/ Thomas C. Sullivan
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Thomas C. Sullivan, Chairman of the
Board of Directors and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on this 19th day of September, 1997.
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Signature Title
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/s/ Thomas C. Sullivan Chairman of the Board of Directors and Chief
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Thomas C. Sullivan
/s/ James A. Karman President and Chief Operating Officer and a Director
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James A Karman
/s/ Frank C. Sullivan Executive Vice President and Chief Financial Officer
- ------------------------------------------------ (Principal Financial Officer) and a Director
Frank C. Sullivan
/s/ Glenn R. Hasman Vice President- Administration (Principal
- ------------------------------------------------ Accounting Officer)
Glenn R. Hasman
/s/ Max D. Amstutz Director
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Max D. Amstutz
/s/ Edward B. Brandon Director
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Edward B. Brandon
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Signature Title
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/s/ Lorrie Gustin Director
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Lorrie Gustin
/s/ E. Bradley Jones Director
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E. Bradley Jones
/s/ Donald K. Miller Director
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Donald K. Miller
/s/ John H. Morris, Jr. Executive Vice President and a Director
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John H. Morris, Jr.
/s/ Kevin O'Donnell Director
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Kevin O'Donnell
/s/ William A. Papenbrock Director
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William A. Papenbrock
/s/ Albert B. Ratner Director
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Albert B. Ratner
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EXHIBIT INDEX
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Exhibit Number Exhibit Description
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4.1 Amended Articles of Incorporation of the Company are incorporated herein by
reference to Exhibit 4.1 of the Company's Registration Statement on Form S-3
(Reg. No. 333-19305).
4.2 Amended Code of Regulations of the Company is incorporated herein by reference
to Exhibit 3.2 of the Company's Annual Report on Form 10-K for the period
ended May 31, 1996.
4.3 RPM, Inc. 1996 Key Employees Stock Option Plan is incorporated herein by
reference to Exhibit 10.7 of the Company's Annual Report on Form 10-K for the
period ended May 31, 1997.
5.1 Opinion of Calfee, Halter & Griswold LLP as to the validity of the securities
being offered.
23.1 Consent of Ciulla, Smith & Dale, LLP.
23.2 Consent of Calfee, Halter & Griswold LLP (included in Exhibit 5.1).
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E-1
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[CALFEE, HALTER AND GRISWOLD LLP LETTERHEAD]
EXHIBIT 5.1
September 19, 1997
RPM, Inc.
2629 Pearl Road
P.O. Box 777
Medina, Ohio 44258
We are familiar with the proceedings taken and proposed to be taken by
RPM, Inc., an Ohio corporation (the "Company"), with respect to 3,600,000 Common
Shares, without par value (the "Shares"), of the Company to be offered and sold
from time to time pursuant to the Company's 1996 Key Employees Stock Option Plan
(the "Plan"). As counsel for the Company, we have assisted in the preparation of
a Registration Statement on Form S-8 (the "Registration Statement") to be filed
by the Company with the Securities and Exchange Commission to effect the
registration of the Shares under the Securities Act of 1933, as amended.
In this connection, we have examined such documents, records and matters
of law as we have deemed necessary or advisable to render the opinion contained
herein. Based upon our examination and inquiries, we are of the opinion that the
Shares are duly authorized and, when offered and sold pursuant to the terms and
conditions of the Plan, will be validly issued, fully paid and nonassessable.
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
opinion stated herein may not be reproduced, filed publicly or relied upon by
any other person for any purpose without the express written consent of the
undersigned.
We are attorneys licensed to practice law in the State of Ohio. The
opinion expressed herein is limited solely to the laws of the State of Ohio and
we express no opinion under the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Respectfully submitted,
CALFEE, HALTER & GRISWOLD LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 pertaining to the RPM, Inc. 1996 Key Employees Stock
Option Plan of our report dated July 10, 1997 with respect to the consolidated
financial statements of RPM, Inc. included in the Annual Report on Form 10-K for
the year ended May 31, 1997 and of our report on the Financial Statement
Schedules which appears in such Annual Report on Form 10-K.
CIULLA, SMITH & DALE, LLP
Cleveland, Ohio
September 19, 1997
