1
As filed with the Securities and Exchange Commission on January 23,July 16, 1996
Registration No. 33-333-
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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 (216)(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
(216)(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/[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
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Title of each class of securities Proposed maximum Amount of
to be registered aggregate offering price (1) registration fee
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Common Shares,
without par value....................... $15.75 $830value...................................... $32,646,875 $11,258
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), using the average of the high and low sales
prices of the Common Shares of the Registrant as reported on the NASDAQ
National Market System on January 19,July 10, 1996. 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.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
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Subject to Completion, Dated January 26,July 16, 1996
PROSPECTUS
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RPM, INC.
152,7772,106,250
COMMON SHARES
(without par value)
This Prospectus relates to the offer and sale of 152,7772,106,250 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 NasdaqNASDAQ National
Market System under the symbol "RPOW." On January 25,July 10, 1996 the last reported sale
price for the Common Shares was $ 14.875$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 January 26,July , 1996
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THE COMPANY
RPM, Inc., an Ohio corporation, has its principal executive
offices at 2628 Pearl Road, P.O. Box 777, Medina, Ohio 44258, and its telephone
number is (216)(330) 273-5090. As used in this Prospectus, the "Company" shall refer
to RPM, Inc. and its consolidated subsidiaries, unless the context indicates
otherwise.
Information in this Prospectus has been adjusted for a five-for-four share split
effected in the form of a 25% share dividend paid on December 8, 1995.
CURRENT DEVELOPMENTS
7% SENIOR NOTES DUE 2005.
On June 20, 1995 the Company sold $150 million aggregate principal
amount of 7.0% Senior Notes Due 2005 (the "Notes") pursuant to a Purchase
Agreement, dated as of June 15, 1995 (the "Purchase Agreement"), by and among
the Company, and Chase Securities, Inc. and Bear, Stearns & Co., Inc. (the
"Initial Purchasers"). The Initial Purchasers resold the Notes in transactions
not requiring registration under the Securities Act of 1933, as amended (the
"Securities Act"). Pursuant to the terms of the Purchase Agreement the Company
completed a registered exchange offer for the Notes under the Securities Act on
November 14, 1995, exchanging $150 million aggregate principal amount of the
Company's 7.0% Senior Exchange Notes due 2005 for $150 million aggregate
principal amount of Notes.
ACQUISITION OF NARRAGANSETT/DSI ACQUISITION CO.,OKURA HOLDINGS, INC.
On July 24, 1995,May 17, 1996, the Company entered into a Plan andStock Purchase
Agreement with the stockholders of Merger (the "Merger Agreement") with Narragansett/DSI Acquisition Co.,Okura Holdings, Inc., a Delaware corporationCorporation
("NDSI"Okura"), and NDSI's securityholders. Pursuantwith respect to the Merger Agreementpurchase by the Company agreed to acquire NDSI throughof all of the merger (the
"Merger"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 subsidiary, RPM of Delaware, Inc., a
Delaware corporation, with and into NDSI, whereby NDSI would become a wholly
owned subsidiary of the Company. The Merger was completed on September 21, 1995.
For additional information with respect to the Company's acquisition of NDSI,
see the Company's Form 8-K Current Report, dated July 24, 1995, which was filed
with the Securities and Exchange Commission (the "Commission") and which is
incorporated herein by reference.
NDSI is a non-operating holding company with one direct wholly owned
operating subsidiary,subsidiaries, Dryvit Systems,
Inc., a Rhode Island corporation ("Dryvit"). Dryvit manufactures, distributes and markets insulated, exterior
wall materials which are used in both new and retrofit construction.
ACQUISITION OF TCI, INC.
On January 11, 1996, the Company, RPM of Georgia, Inc., a wholly-owned
subsidiary of the Company ("RPM of Georgia") and TCI, Inc., a Georgia
corporation ("TCI") entered into an Agreement and Plan of Reorganization
pursuant to which, as of such date, RPM of Georgia merged with and into TCI,
whereby TCI became a wholly-owned subsidiary of the Company.
RISK FACTOR
NDSI periodically receives warranty claims relating to rust spotting
and staining that appears on a customer's exterior finished wall. These rust
claims arise from the presence of impurities in the sand component of product
manufactured by NDSI's operating subsidiary, Dryvit, prior to April 1991. The impurities consisted of ferrous
and pyrite particles which developed into rust spots when exposed to seasonal
weathering conditions. The rust spots affect only the aesthetic appearance of
the building and have no impact on its structural integrity.
NDSIDryvit 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. NDSIDryvit has not
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5 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 (216)(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, and November 30, 1995;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 March 31,
1995January 11, 1996 in connection with the merger (the "Merger") of
Simian Company,RPM of Georgia, Inc., a Delaware corporation ("Old Simian") with and into LS Acquisition Company, a
DelawareGeorgia corporation and a direct, wholly-ownedwholly owned
subsidiary of the Company with and into TCI, Inc., a Georgia corporation
("New
Simian"TCI"). Immediately after, whereby TCI became a wholly owned subsidiary of the Merger, New Simian changed its name to Simian
Company, Inc.Company. In
connection with the Merger, the stockholdersshareholders of Old SimianTCI received, in the aggregate,
152,7772,106,250 Common Shares of the Company. The 152,7772,106,250 Common Shares owned by the
Selling Shareholders represent all of the Common Shares presently owned by them.
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The following table shows as to each Selling Shareholder the
number of Common Shares owned by each Selling Shareholder prior to this offering
and the number of Common Shares being registered hereby:
Shares Number
owned of
prior to Shares
Name offering registered
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Kenneth A. Haines(1).......................................... 92,592 92,592
Debby L. Haines(2)............................................ 60,185 60,185
-------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
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Total..................... 152,777(3) 152,777(3)
======= =======2,106,250 2,106,250
========= =========
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(1) Effective the same day as the Merger, New Simian entered into an
Employment Agreement with Kenneth A. Haines pursuant to which he agreed
to serve as President of New Simian until March 31, 1998. Mr. Haines
also serves as a Director of New Simian; formerly he was an officer and
Director of Old Simian.
(2) Effective the same day as the Merger, New Simian entered into an
Employment Agreement with Debby L. Haines pursuant to which she agreed
to serve as Vice President of New Simian until March 31, 1998. Ms.
Haines formerly was an officer and Director of Old Simian.
(3) Includes 12,222 Common Shares, consisting of 8,148 Common Shares owned
by Kenneth A. Haines, and 4,074 Common Shares owned by Debby L. Haines,
being held in escrow by National City Bank (the "Escrow Agent") in
accordance with an Escrow Agreement dated March 31, 1995 by and among
the Selling Shareholders, the Escrow Agent, New Simian and the Company
(the "Escrow Agreement") until the later of (i) March 31, 1996, or (ii)
the resolution of certain litigation described in the Escrow Agreement.
The Common Shares held under the Escrow Agreement are for the purpose
of indemnifying the Company against losses resulting from any breach of
the representations, warranties and covenants contained in the
Agreement and Plan of Reorganization dated March 31, 1995, by and among
the Company, Old Simian, New Simian and the Selling Shareholders. As
and in the manner provided for in the Escrow Agreement, the Selling
Shareholders may substitute suitable collateral for the Common Shares
held in escrow.
In connection with the Merger, Mr. Hainesthe Selling Shareholders and Ms. Haines alsoThomas H.
Slade III, the spouse of Linda C. Slade and President of TCI, entered into
Noncompetition Agreements with New Simian.TCI.
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Securities Agreement
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Under the terms of a Securities Agreement dated March 31, 1995January 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 152,7772,106,250 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 152,7772,106,250 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 -4-
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this Prospectus, the Company
is unaware of any plans or intentions of the Selling Shareholders with respect
to the amount of Common Shares eitherany of them desire to sell or when eitherany of the
Selling Shareholders would desire to sell their Common Shares.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 75,305,48677,448,942 shares outstanding as of January 2,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
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8 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
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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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VALIDITY OF SHARES
The validity of the Common Shares offered hereby will be
passed upon by Calfee, Halter & Griswold, 1400 McDonald Investment Center, 800
Superior Avenue, Cleveland, Ohio 44114. William A. Papenbrock, Esq., a partner
of Calfee, Halter & Griswold, is a Director of the Company and as of January 26,May 31,
1996 beneficially owned 11,28811,466 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 NDSINarragansett/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 -6-
9
uncertainty. The consolidated financial statements referred
to above are incorporated herein by reference in reliance upon such reportsreport and
upon the authority of such firms as experts in accounting and auditing.
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109
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS.
Item 14. Other Expenses of Issuance and Distribution.
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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:
SEC Registration Fee...............................Fee................................ $ 830.0011,258
Fees and Expenses of Counsel....................... 7,500.00
Miscellaneous...................................... 170.00
---------
Total............................ $8,500.00
=========Counsel........................ 7,500
Miscellaneous....................................... 1,242
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Total..................................... $ 20,000
===========
Item 15. Indemnification of Directors and Officers.
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Ohio Revised Code Section 1701.13(E)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 March 31, 1995January 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 4.44.4. to this
Registration Statement and is incorporated herein by reference thereto.
Item 16. Exhibits.
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See the Exhibit Index at page E-1 of this Registration Statement.
Item 17. Undertakings.
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(1) The undersigned Registrant hereby undertakes:
(a) To file, during the period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
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1110
(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,PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(2) The undersigned Registrant hereby undertakes that for the purpose
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted for Directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a Director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such Director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-2
1211
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 25TH15TH DAY OF
JANUARY,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 25TH15TH DAY OF JANUARY,JULY, 1996.
SIGNATURE TITLE
--------- -----
/s/ Thomas C. Sullivan Chairman of the Board of
- --------------------------------------------------------- Directors and Chief Executive
Thomas C. Sullivan Officer (principal executive
officer)
/s/ James A. Karman President, Chief Operating
- --------------------------------------------------------- Officer and a Director
James A. Karman
/s/ Frank C. Sullivan Executive Vice President and Chief
- --------------------------------------------------------- Financial Officer (principal
Frank C. Sullivan (principal financial officer) and a Director
/s/ Glenn R. Hasman Vice President, Administration
- --------------------------------------------------------- (principal accounting officer)
Glenn R. Hasman
II-3
1312
SIGNATURE TITLE
--------- -----
/s/ Max D. Amstutz Director
- ---------------------------------------------------------
Max D. Amstutz
/s/ Edward B. Brandon Director
- ---------------------------------------------------------
Edward B. Brandon
/s/ Lorrie Gustin Director
- ---------------------------------------------------------
Lorrie Gustin
/s/ Roy H. Holdt Director
- ---------------------------------------------------------
Roy H. Holdt
/s/ E. Bradley Jones Director
- ---------------------------------------------------------
E. Bradley Jones
/s/ Donald K. Miller Director
- ---------------------------------------------------------
Donald K. Miller
/s/ John H. Morris, Jr. Director
- ---------------------------------------------------------
John H. Morris, Jr.
/s/ Kevin O'Donnell Director
- ---------------------------------------------------------
Kevin O'Donnell
/s/ William A. Papenbrock Director
- ---------------------------------------------------------
William A. Papenbrock
/s/ Stephen Stranahan Director
- ---------------------------
Stephen Stranahan
II-4
1413
RPM, INC.
EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION OF DOCUMENT PAGE NUMBER
- ------ ----------------------- -----------
4.1 Amended Articles of Incorporation, as amended, of the Registrant (A)
4.1.1 Amendment to Articles of Incorporation, as filed with the Ohio (B)
Secretary of State on October 9, 1992
4.2 Amended Code of Regulations of the Registrant (C)
4.3 Specimen Certificate of Common Shares, without par value, of the Registrant (D)
4.4 Securities Agreement dated March 31, 1995January 11, 1996 by and among the Registrant and the
shareholders of Simian Company,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
24.1 Power of Attorney and related Certified Resolution
99.1 Ohio Revised Code Section 1701.13(E)Section.1701.13(E), pertaining to indemnification (E)
of Directors (F)
and officers
99.2 Article VI of the Registrant's Amended Code of Regulations (E)(F)
99.3 Directors and Officers Liability Insurance Policy (E)(F)
99.4 Form of Indemnification Agreement between the Registrant and each (E)
of its Directors and executive officers
- --------------(F)
of its Directors and executive officers
- ------------------------
(A) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the fiscal year ended May
31, 1984 and the appropriate exhibit to the Registrant's Annual Report
on Form 10-K for the fiscal year ended May 31, 1987.
(B) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Statement on Form S-3 (Reg. No. 33-50868).
(C) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the fiscal year ended May
31, 1988.
E-1
1514
(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