EXHIBIT 10.21
COMMERCIAL PAPER DEALER AGREEMENT
[ 4(2) Program ]
Between:
RPM INTERNATIONAL INC., AS ISSUER
and
U.S. BANCORP PIPER JAFFRAY INC., AS DEALER
Concerning short-term promissory notes (the "Notes") to be issued pursuant to an
Issuing and Paying Agency Agreement dated as of April 21, 2003 between the
Issuer and U.S. Bank Trust National Association as Issuing and Paying Agent.
Dated as of: April 21, 2003.
COMMERCIAL PAPER DEALER AGREEMENT
[ 4(2) PROGRAM ]
This Commercial Paper Dealer Agreement (the "Agreement") sets forth the
understandings between the Issuer and the Dealer in connection with the issuance
and sale by the Issuer of the Notes through the Dealer.
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described in this
Agreement or such Addendum, are hereby incorporated into this Agreement and made
fully a part hereof.
1. Offers, Sales and Resales of Notes.
1.1 While (i) the Issuer has and shall have no obligation to sell
the Notes to the Dealer or to permit the Dealer to arrange any
sale of the Notes for the account of the Issuer, and (ii) the
Dealer has and shall have no obligation to purchase the Notes
from the Issuer or to arrange any sale of the Notes for the
account of the Issuer, the parties hereto agree that in any
case where the Dealer purchases Notes from the Issuer, or
arranges for the sale of Notes by the Issuer, such Notes will
be purchased or sold by the Dealer in reliance on the
representations, warranties, covenants and agreements of the
Issuer contained herein or made pursuant hereto and on the
terms and conditions and in the manner provided herein.
1.2 So long as this Agreement shall remain in effect, and in
addition to the limitations contained in Section 1.7 hereof,
the Issuer shall not, without the consent of the
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Dealer, offer, solicit or accept offers to purchase, or sell,
any Notes except (a) in transactions with one or more dealers
which may from time to time after the date hereof become
dealers with respect to the Notes by executing with the Issuer
one or more agreements which contain provisions substantially
identical to those contained in Section 1 of this Agreement,
of which the Issuer hereby undertakes to provide the Dealer
prompt notice or (b) in transactions with the other dealers
listed on the Addendum hereto, which are executing agreements
with the Issuer which contain provisions substantially
identical to Section 1 of this Agreement contemporaneously
herewith. In no event shall the Issuer offer, solicit or
accept offers to purchase, or sell, any Notes directly on its
own behalf in transactions with persons other than
broker-dealers as specifically permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination of $250,000 or
integral multiples of $1,000 in excess thereof, will bear such
interest rates, if interest bearing, or will be sold at such
discount from their face amounts, as shall be agreed upon by
the Dealer and the Issuer, shall have a maturity not exceeding
270 days from the date of issuance (exclusive of days of
grace) and shall not contain any provision for extension,
renewal or automatic "rollover."
1.4 The authentication and issuance of, and payment for, the Notes
shall be effected in accordance with the Issuing and Paying
Agency Agreement, and the Notes shall be either individual
physical certificates or book-entry notes evidenced by a
Master Note registered in the name of DTC or its nominee, in
the form or forms annexed to the Issuing and Paying Agency
Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the Dealer or the sale of any Notes
arranged by the Dealer (including, but not limited to,
agreement with respect to the date of issue, purchase price,
principal amount, maturity and interest rate (in the case of
interest-bearing Notes) or discount thereof (in the case of
Notes issued on a discount basis), and appropriate
compensation for the Dealer's services hereunder) pursuant to
this Agreement, the Issuer shall cause such Note to be issued
and delivered in accordance with the terms of the Issuing and
Paying Agency Agreement and payment for such Note shall be
made by the purchaser thereof, either directly or through the
Dealer, to the Issuing and Paying Agent, for the account of
the Issuer. Except as otherwise agreed, in the event that the
Dealer is acting as an agent and a purchaser shall either fail
to accept delivery of or make payment for a Note on the date
fixed for settlement, the Dealer shall promptly notify the
Issuer, and if the Dealer has theretofore paid the Issuer for
the Note, the Issuer will promptly return such funds to the
Dealer against its return of the Note to the Issuer, in the
case of a certificated Note, and upon notice of such failure
in the case of a book-entry Note. If such failure occurred for
any reason other than default by the Dealer, the Issuer shall
reimburse the Dealer on an equitable basis for the Dealer's
loss of the use of such funds for the period such funds were
credited to the Issuer's account.
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1.6 The Dealer and the Issuer hereby establish and agree to
observe the following procedures in connection with offers,
sales and subsequent resales or other transfers of the Notes;
(a) Offers and sales of the Notes by or through the
Dealer shall be made only to: (i) investors
reasonably believed by the Dealer to be Qualified
Institutional Buyers, Institutional Accredited
Investors or Sophisticated Individual Accredited
Investors and (ii) non-bank fiduciaries or agents
that will be purchasing Notes for one or more
accounts, each of which is reasonably believed by the
Dealer to be an Institutional Accredited Investor or
Sophisticated Individual Accredited Investor.
(b) Resales and other transfers of the Notes by the
holders thereof shall be made only in accordance with
the restrictions in the legend described in clause
(e) below.
(c) No general solicitation or general advertising shall
be used in connection with the offering of the Notes.
Without limiting the generality of the foregoing,
without the prior written approval of the Dealer, the
Issuer shall not issue any press release or place or
publish any "tombstone" or other advertisement
relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for
less than $250,000 principal or face amount, and no
Note shall be issued in a smaller principal or face
amount. If the purchaser is a non-bank fiduciary
acting on behalf of others, each person for whom such
purchaser is acting must purchase at least $250,000
principal or face amount of Notes.
(e) Offers and sales of the Notes by the Issuer through
the Dealer acting as agent for the Issuer shall be
made in accordance with Rule 506 under the Securities
Act, and shall be subject to the restrictions
described in the legend appearing on Exhibit A
hereto. A legend substantially to the effect of such
Exhibit A shall appear as part of the CP Memorandum
used in connection with offers and sales of Notes
hereunder, as well as on each individual certificate
representing a Note and each Master Note representing
book-entry Notes offered and sold pursuant to this
Agreement.
(f) The Dealer shall furnish or shall have furnished to
each purchaser of Notes for which it has acted as the
Dealer a copy of the then-current CP Memorandum
unless such purchaser has previously received a copy
of the CP Memorandum as then in effect. The CP
Memorandum shall expressly state that any person to
whom Notes are offered shall have an opportunity to
ask questions of, and receive information from, the
Issuer and the
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Dealer and shall provide the names, addresses and
telephone numbers of the persons from whom
information regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and
each of the holders and prospective purchasers from
time to time of the Notes that, if at any time the
Issuer shall not be subject to Section 13 or 15(d) of
the Exchange Act, the Issuer will furnish, upon
request and at its expense, to the Dealer and to
holders and prospective purchasers of Notes
information required by Rule 144A(d)(4)(i) in
compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered
by the Dealer would be ineligible for resale under
Rule 144A, the Issuer shall immediately notify the
Dealer (by telephone, confirmed in writing) of such
fact and shall promptly prepare and deliver to the
Dealer an amendment or supplement to the CP
Memorandum describing the Notes that are ineligible,
the reason for such ineligibility and any other
relevant information relating thereto.
(i) Dealer acknowledges that during the period of time
the Notes are outstanding the Issuer may issue
commercial paper in the United States market in
reliance upon, and in compliance with, the exemption
provided by Section 3(a)(3) of the Securities Act. In
that connection, the Issuer agrees that (a) the
proceeds from the sale of the Notes will be
segregated from the proceeds of the sale of any such
commercial paper by being placed in a separate
account; (b) the Issuer will institute appropriate
corporate procedures to ensure that the offers and
sales of notes issued by the Issuer pursuant to the
Section 3(a)(3) exemption are not integrated with
offerings and sales of Notes hereunder; and (c) the
Issuer will comply with each of the requirements of
Section 3(a)(3) of the Act in selling commercial
paper or other short-term debt securities other than
the Notes in the United States.
1.7 The Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as
follows:
(a) Issuer hereby confirms to the Dealer that (except as
permitted by Section 1.6(i)) within the preceding six
months neither the Issuer nor any person other than
the Dealer or the other dealers referred to in
Section 1.2 hereof acting on behalf of the Issuer has
offered or sold any Notes, or any substantially
similar security of the Issuer (including, without
limitation, medium-term notes issued by the Issuer),
to or solicited offers to buy any such security from,
any person other than the Dealer or the other dealers
referred to in Section 1.2 hereof. The Issuer also
agrees that (except as permitted by Section 1.6(i)),
as long as the Notes are being offered for sale
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by the Dealer and the other dealers referred to in
Section 1.2 hereof as contemplated hereby and until
at least six months after the offer of Notes
hereunder has been terminated, neither the Issuer nor
any person other than the Dealer or the other dealers
referred to in Section 1.2 hereof (except as
contemplated by Section 1.2 hereof) will offer the
Notes or any substantially similar security of the
Issuer for sale to, or solicit offers to buy any such
security from, any person other than the Dealer or
the other dealers referred to in Section 1.2 hereof,
it being understood that such agreement is made with
a view to bringing the offer and sale of the Notes
within the exemption provided by Section 4(2) of the
Securities Act and Rule 506 thereunder and shall
survive any termination of this Agreement.
(b) The Issuer represents and agrees that the proceeds of
the sale of the Notes are not currently contemplated
to be used for the purpose of buying, carrying or
trading securities within the meaning of Regulation T
and the interpretations thereunder by the Board of
Governors of the Federal Reserve System. In the event
that the Issuer determines to use such proceeds for
the purpose of buying, carrying or trading
securities, whether in connection with an acquisition
of another company or otherwise, the Issuer shall
give the Dealer at least five business days' prior
written notice to that effect. The Issuer shall also
give the Dealer prompt notice of the actual date that
it commences to purchase securities with the proceeds
of the Notes. Thereafter, in the event that the
Dealer purchases Notes as principal and does not
resell such Notes on the day of such purchase, to the
extent necessary to comply with Regulation T and the
interpretations thereunder, the Dealer will sell such
Notes either (i) only to offerees it reasonably
believes to be QIBs or to QIBs it reasonably believes
are acting for other QIBs, in each case in accordance
with Rule 144A or (ii) in a manner which would not
cause a violation of Regulation T and the
interpretations thereunder.
2. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its incorporation and has all the
requisite power and authority to execute, deliver and
perform its obligations under the Notes, this
Agreement and the Issuing and Paying Agency
Agreement.
2.2 This Agreement and the Issuing and Paying Agency
Agreement have been duly authorized, executed and
delivered by the Issuer and constitute legal, valid
and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms,
subject to applicable bankruptcy, insolvency
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and similar laws affecting creditors' rights
generally, and subject, as to enforceability, to
general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at
law).
2.3 The Notes have been duly authorized, and when issued
as provided in the Issuing and Paying Agency
Agreement, will be duly and validly issued and will
constitute legal, valid and binding obligations of
the Issuer enforceable against the Issuer in
accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting
creditors' rights generally, and subject, as to
enforceability, to general principles of equity
(regardless of whether enforcement is sought in a
proceeding in equity or at law).
2.4 The offer and sale of Notes in the manner
contemplated hereby will constitute exempt
transactions under the Securities Act and,
accordingly registration of the Notes under the
Securities Act will not be required, and no indenture
in respect of the Notes is required to be qualified
under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all
other unsecured and unsubordinated indebtedness of
the Issuer.
2.6 No consent or action of, or filing or registration
with, any governmental or public regulatory body or
authority, including the SEC, is required to
authorize, or is otherwise required in connection
with the execution, delivery or performance of, this
Agreement, the Notes or the Issuing and Paying Agency
Agreement, except as may be required by the
securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement
and the Issuing and Paying Agency Agreement, nor the
issuance of the Notes in accordance with the Issuing
and Paying Agency Agreement, nor the fulfillment of
or compliance with the terms and provisions hereof or
thereof by the Issuer, will (i) result in the
creation or imposition of any mortgage, lien, charge
or encumbrance of any nature whatsoever upon any of
the properties or assets of the Issuer, or (ii)
violate or result in a breach or a default under any
of the terms of the Issuer's charter documents or
by-laws, any contract or instrument to which the
Issuer is a party or by which it or its property is
bound, or any law or regulation, or any order, writ,
injunction or decree of any court or government
instrumentality, to which the Issuer is subject or by
which it or its property is bound, which breach or
default might have a material adverse effect on the
condition (financial or otherwise), operations or
business prospects of the Issuer or the ability of
the Issuer to
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perform its obligations under this Agreement, the
Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there
is no litigation or governmental proceeding pending,
or to the knowledge of the Issuer threatened, against
or affecting the Issuer or any of its subsidiaries
which might result in a material adverse change in
the condition (financial or otherwise), operations or
business of the Issuer or the ability of the Issuer
to perform its obligations under this Agreement, the
Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an
entity "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as
amended.
2.10 Neither the CP Memorandum (excluding any information
furnished by the Dealer for inclusion therein) nor
the Company Information contains any untrue statement
of a material fact or omits to state a material fact
required to be stated therein or necessary to make
the statements therein, in light of the circumstances
under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder
and (b) amendment or supplement of the CP Memorandum
shall be deemed a representation and warranty by the
Issuer to the Dealer, as of the date thereof, that,
both before and after giving effect to such issuance
and after giving effect to such amendment or
supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2
remain true and correct on and as of such date as if
made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such
date have been duly and validly issued and constitute
legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with
their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability,
to general principles of equity (regardless of
whether enforcement is sought in a proceeding in
equity or at law) and (iii) in the case of an
issuance of Notes, since the date of the most recent
CP Memorandum, there has been no material adverse
change in the condition (financial or otherwise),
operations or business of the Issuer which has not
been disclosed to the Dealer in writing.
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3. Covenants and Agreements of Issuer.
The Issuer covenants and agrees that:
3.1 The Issuer will provide the Dealer written notice of
any amendment to, modification of or waivers with
respect to, the Notes or the Issuing and Paying
Agency Agreement, including a complete copy of any
such amendment, modification or waiver.
3.2 The Issuer shall, whenever there shall occur any
change in the Issuer's condition (financial or
otherwise), operations or business or any development
or occurrence in relation to the Issuer that would be
material to holders of the Notes or potential holders
of the Notes (including any downgrading or receipt of
any notice of intended or potential downgrading or
any review for potential change in the rating
accorded any of the Issuer's securities by any
nationally recognized statistical rating organization
which has published a rating of the Notes), promptly,
and in any event prior to any subsequent issuance of
Notes hereunder, notify the Dealer of such change,
development or occurrence.
3.3 The Issuer will provide the Dealer any press releases
or material public information provided by the Issuer
to any national securities exchange.
3.4 The Issuer will take all such action as the Dealer
may reasonably request to ensure that each offer and
each sale of the Notes will comply with any
applicable state Blue Sky laws; provided, however,
that the Issuer shall not be obligated to file any
general consent to service of process or to qualify
as a foreign corporation in any jurisdiction in which
it is not so qualified or subject itself to taxation
in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer will not be in default of any of its
obligations hereunder, under the Notes or under the
Issuing and Paying Agency Agreement, at any time that
any of the Notes are outstanding.
3.6 The Issuer shall not issue Notes hereunder until the
Dealer shall have received (a) an opinion of counsel
to the Issuer, addressed to the Dealer, satisfactory
in form and substance to the Dealer, (b) a copy of
the executed Issuing and Paying Agency Agreement as
then in effect, (c) a copy of resolutions adopted by
the Board of Directors of the Issuer, and certified
by the Secretary or similar officer of the Issuer,
authorizing execution and delivery by the Issuer of
this Agreement, the Issuing and Paying Agency
Agreement and the Notes and consummation by the
Issuer of the transactions contemplated hereby and
thereby, and (d) prior to the issuance
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of any Notes represented by a book-entry note
registered in the name of DTC or its nominee, a copy
of the executed Letter of Representations among the
Issuer, the Issuing and Paying Agent and DTC.
3.7 The Issuer shall reimburse the Dealer for all of the
Dealer's out-of-pocket expenses related to this
Agreement, including expenses incurred in connection
with its preparation and negotiation, and the
transactions contemplated hereby (including, but not
limited to, the printing and distribution of the CP
Memorandum), and, if applicable, for the reasonable
fees and out-of-pocket expenses of the Dealer's
counsel.
3.8 Without limiting any obligation of the Issuer
pursuant to this Agreement to provide the Dealer with
credit and financial information, the Issuer hereby
acknowledges and agrees that the Dealer may share the
Company Information and any other information or
matters relating to the Issuer or the transactions
contemplated hereby with affiliates of the Dealer,
including, but not limited, to U.S. Bank, National
Association, and that such affiliates may likewise
share information relating to the Issuer or such
transactions with the Dealer.
3.9 The Issuer shall maintain one or more legally
committed, immediately available credit facilities
under which draws are allowable to repay outstanding
commercial paper, such credit facilities (i) being in
an aggregate amount equal to or greater than the
aggregate amount of the Notes outstanding and having
an expiration date later than the last maturity date
of any of the Notes issued and outstanding and (ii)
having undrawn, available commitments in an aggregate
amount equal to or greater than the aggregate amount
equal to any of the Notes issued and outstanding.
4. Disclosure.
4.1 The CP Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility
of the Issuer. The CP Memorandum shall contain a
statement expressly offering an opportunity for each
prospective purchaser to ask questions of, and
receive answers from, the Issuer concerning the
offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire
without unreasonable effort or expense.
4.2 The Issuer agrees to promptly furnish the Dealer the
Company Information as it becomes available.
4.3 (a) The Issuer further agrees to notify the Dealer
promptly upon the occurrence of any event relating to
or affecting the Issuer that would cause
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the Company Information then in existence to include
an untrue statement of a material fact or to omit to
state a material fact necessary in order to make the
statements contained therein, in light of the
circumstances under which they are made, not
misleading.
(b) In the event that the Issuer gives the Dealer
notice pursuant to Section 4.3(a) and the Dealer
notifies the Issuer that it then has Notes it is
holding in inventory, the Issuer agrees promptly to
supplement or amend the CP Memorandum so that the CP
Memorandum, as amended or supplemented, shall not
contain an untrue statement of a material fact or
omit to state a material fact necessary in order to
make the statements therein, in light of the
circumstances under which they were made, not
misleading, and the Issuer shall make such supplement
or amendment available to the Dealer.
(c) In the event that (i) the Issuer gives the Dealer
notice pursuant to Section 4.3(a), (ii) the Dealer
does not notify the Issuer that it is then holding
Notes in inventory and (iii) the Issuer chooses not
to promptly amend or supplement the CP Memorandum in
the manner described in clause (b) above, then all
solicitations and sales of Notes shall be suspended
until such time as the Issuer has so amended or
supplemented the CP Memorandum, and made such
amendment or supplement available to the Dealer.
5. Indemnification and Contribution.
5.1 The Issuer will indemnify and hold harmless the
Dealer, each individual, corporation, partnership,
trust, association or other entity controlling the
Dealer, any affiliate of the Dealer or any such
controlling entity and their respective directors,
officers, employees, partners, incorporators,
shareholders, servants, trustees and agents
(hereinafter the "Indemnitees") against any and all
liabilities, penalties, suits, causes of action,
losses, damages, claims, costs and expenses
(including, without limitation, reasonable fees and
disbursements of counsel) or judgments of whatever
kind or nature (each a "Claim"), imposed upon,
incurred by or asserted against the Indemnitees
arising out of or based upon (i) any allegation that
the CP Memorandum, the Company Information or any
written information provided by the Issuer to the
Dealer included (as of any relevant time) or includes
an untrue statement of a material fact or omitted (as
of any relevant time) or omits to state any material
fact necessary to make the statements therein, in
light of the circumstances under which they were
made, not misleading . This indemnification shall not
apply to the extent that the Claim arises out of or
is based upon Dealer Information. In addition, and
subject thereto, Dealer shall indemnify and hold the
Issuer harmless to the same extent as provided above
in the event that any claim
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arises from or is based upon the information of
Dealer contained in the last two paragraphs of the CP
Memorandum.
5.2 Provisions relating to claims made for
indemnification under this Section 5 are set forth on
Exhibit B to this Agreement.
5.3 In order to provide for just and equitable
contribution in circumstances in which the
indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold
harmless the Indemnitees, although applicable in
accordance with the terms of this Section 5, the
Issuer shall contribute to the aggregate costs
incurred by the Dealer in connection with any Claim
in the proportion of the respective economic
interests of the Issuer and the Dealer; provided,
however, that such contribution by the Issuer shall
be in an amount such that the aggregate costs
incurred by the Dealer do not exceed the aggregate of
the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of
Notes to which such Claim relates. The respective
economic interests shall be calculated by reference
to the aggregate proceeds to the Issuer of the Notes
issued hereunder and the aggregate commissions and
fees earned by the Dealer hereunder.
6. Definitions.
6.1 "Claim" shall have the meaning set forth in Section
5.1.
6.2 "Company Information" at any given time shall mean
the CP Memorandum together with, to the extent
applicable, (i) the Issuer's most recent report on
Form 10-K filed with the SEC and each report on Form
10-Q or 8-K filed by the Issuer with the SEC since
the most recent Form 10-K, and if not included in
item (i) above, (ii) the Issuer's most recent annual
audited financial statements and each interim
financial statement or report prepared subsequent
thereto, and if not included in item (i) or (ii)
above, (iii) any other information or disclosure
prepared pursuant to Section 4.3 hereof.
6.3 "CP Memorandum" shall mean offering materials
prepared in accordance with Section 4 (including
materials referred to therein or incorporated by
reference therein) provided to purchasers and
prospective purchasers of the Notes, and shall
include amendments and supplements thereto which may
be prepared from time to time in accordance with this
Agreement (other than any amendment or supplement
that has been completely superseded by a later
amendment or supplement).
6.4 "Dealer Information" shall mean material concerning
the Dealer provided by the Dealer in writing
expressly for inclusion in the CP Memorandum.
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6.5 "DTC" shall mean The Depository Trust Company.
6.6 "Exchange Act" shall mean the U.S. Securities
Exchange Act of 1934, as amended.
6.7 "Indemnitee" shall have the meaning set forth in
Section 5.1.
6.8 "Institutional Accredited Investor" shall mean an
institutional investor that is an accredited investor
within the meaning of Rule 501 under the Securities
Act and that has such knowledge and experience in
financial and business matters that it is capable of
evaluating and bearing the economic risk of an
investment in the Notes, including, but not limited
to, a bank, as defined in Section 3(a)(2) of the
Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A)
of the Securities Act, whether acting in its
individual or fiduciary capacity.
6.9 "Issuing and Paying Agency Agreement" shall mean the
issuing and paying agency agreement described on the
cover page of this Agreement, as such agreement may
be amended or supplemented from time to time.
6.10 "Issuing and Paying Agent" shall mean the party
designated as such on the cover page of this
Agreement, as issuing and paying agent under the
Issuing and Paying Agency Agreement, or any successor
thereto in accordance with the Issuing and Paying
Agency Agreement.
6.11 "Non-bank fiduciary or agent" shall mean a fiduciary
or agent other than (a) a bank, as defined in Section
3(a)(2) of the Securities Act, or (b) a savings and
loan association, as defined in Section 3(a)(5)(A) of
the Securities Act.
6.12 "Qualified Institutional Buyer" shall have the
meaning assigned to that term in Rule 144A under the
Securities Act.
6.13 "Rule 144A" shall mean Rule 144A under the Securities
Act.
6.14 " Regulation D" shall mean Regulation D (Rules 501 et
seq.) under the Securities Act.
6.15 "SEC" shall mean the U.S. Securities and Exchange
Commission.
6.16 "Securities Act" shall mean the U.S. Securities Act
of 1933, as amended.
6.17 "Sophisticated Individual Accredited Investor" shall
mean an individual who is an accredited investor
within the meaning of Rule 501 under the
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Securities Act and who has such knowledge and
experience in financial and business matters that he
or she is capable of evaluating and bearing the
economic risk of an investment in the Notes.
7. General
7.1 Unless otherwise expressly provided herein, all
notices under this Agreement to parties hereto shall
be in writing and shall be effective when received at
the address of the respective party set forth in the
Addendum to this Agreement.
7.2 This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota,
without regard to its conflict of laws provisions.
7.3 The Issuer and Dealer agree that any suit, action or
proceeding brought in in connection with or arising
out of this Agreement or the Notes or the offer and
sale of the Notes may only be brought in either the
United States federal courts located in Minneapolis,
Minnesota or Cleveland, Ohio. Each of the Dealer and
the Issuer waives its right to trial by jury in any
suit, action or proceeding with respect to this
Agreement or the transactions contemplated hereby.
7.4 This Agreement may be terminated, at any time, by the
Issuer, upon one business day's prior notice to such
effect to the Dealer, or by the Dealer upon one
business day's prior notice to such effect to the
Issuer. Any such termination, however, shall not
affect the obligations of the Issuer under Sections
3.7, 5 and 7.3 hereof or the respective
representations, warranties, agreements, covenants,
rights or responsibilities of the parties made or
arising prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either party
hereto without the written consent of the other
party; provided, however, that (a) the Dealer may
assign its rights and obligations under this
Agreement to any affiliate of the Dealer upon written
notice to the Issuer.
7.6 This Agreement may be signed in any number of
counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and
hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the
parties hereto, and their respective permitted
successors and assigns hereunder, and shall not be
deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
RPM International Inc., as Issuer
By: /s/ Keith R. Smiley
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Name: Keith R. Smiley
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Title: Vice President - Treasurer
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U.S. Bancorp Piper Jaffray Inc., as Dealer
By: /s/ Lou Martine
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Name: Lou Martine
------------------------------------------------
Title: Managing Director
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14
ADDENDUM
The following additional clauses shall apply to the Agreement and be deemed a
part thereof:
1. The other dealer(s) referred to in clause (b) of Section 1.2 of the
Agreement is (are):___________________________________________________.
2. The addresses of the respective parties for purposes of notices under
Section 7.1 are as follows:
FOR THE ISSUER: RPM International Inc.
Address: 2628 Pearl Road
P.O. Box 777
Medina, OH 44258
Attention: Keith Smiley, Vice President and Treasurer
Telephone: (330) 273-8837
Fax number: (330) 225-6574
With copy to:
P. Kelly Tompkins
Senior Vice President, General Counsel and Secretary
RPM International Inc.
2628 Pearl Road
Medina, Ohio 44258
Edward W. Moore, Esq.
Calfee, Halter & Griswold LLP
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114-2688
FOR THE DEALER: U.S. Bancorp Piper Jaffray Inc.
Address: 111 SW Fifth Avenue, Suite 1900
Portland, OR 97204
Attention: Corporate Finance
Telephone: (503) 275-4920
Fax number: (503) 275-3490
EXHIBIT A
FORM OF LEGEND FOR CP MEMORANDUM AND NOTES
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY OTHER APPLICABLE SECURITIES LAW, AND OFFERS AND SALES
THEREOF MAY BE MADE ONLY IN COMPLIANCE WITH AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER WILL BE DEEMED TO REPRESENT THAT IT
HAS BEEN AFFORDED AN OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE ISSUER
AND THE NOTES, THAT IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW TO ANY
DISTRIBUTION THEREOF AND THAT IT IS EITHER (A) AN INSTITUTIONAL INVESTOR OR
SOPHISTICATED INDIVIDUAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE
MEANING OF RULE 501(a) UNDER THE ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR" OR
"SOPHISTICATED INDIVIDUAL ACCREDITED INVESTOR", RESPECTIVELY) AND THAT EITHER IS
PURCHASING NOTES FOR ITS OWN ACCOUNT, IS A U.S. BANK (AS DEFINED IN SECTION
3(a)(2) OF THE ACT) OR A SAVINGS AND LOAN ASSOCIATION OR OTHER INSTITUTION (AS
DEFINED IN SECTION 3(a)(5)(A) OF THE ACT) ACTING IN ITS INDIVIDUAL OR FIDUCIARY
CAPACITY OR IS A FIDUCIARY OR AGENT (OTHER THAN A U.S. BANK OR SAVINGS AND LOAN)
PURCHASING NOTES FOR ONE OR MORE ACCOUNTS EACH OF WHICH IS SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR OR SOPHISTICATED INDIVIDUAL ACCREDITED INVESTOR (i) WHICH
ITSELF POSSESSES SUCH KNOWLEDGE AND EXPERIENCE OR (ii) WITH RESPECT TO WHICH
SUCH PURCHASER HAS SOLE INVESTMENT DISCRETION; OR (B) A QUALIFIED INSTITUTIONAL
BUYER ("QIB") WITHIN THE MEANING OF RULE 144A UNDER THE ACT WHICH IS ACQUIRING
NOTES FOR ITS OWN ACCOUNT OR FOR ONE OR MORE ACCOUNTS, EACH OF WHICH IS A QIB
AND WITH RESPECT TO EACH OF WHICH THE PURCHASER HAS SOLE INVESTMENT DISCRETION;
AND THE PURCHASER ACKNOWLEDGES THAT IT IS AWARE THAT THE SELLER MAY RELY UPON
THE EXEMPTION FROM THE REGISTRATION PROVISIONS OF SECTION 5 OF THE ACT PROVIDED
BY RULE 144A. BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER THEREOF SHALL ALSO BE
DEEMED TO AGREE THAT ANY RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY (A)
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE ACT, EITHER (1) TO THE
ISSUER OR TO U.S. BANCORP INVESTMENTS INC. OR ANOTHER PERSON DESIGNATED BY THE
ISSUER AS A PLACEMENT AGENT FOR THE NOTES (COLLECTIVELY, THE "PLACEMENT
AGENTS"), NONE OF WHICH SHALL HAVE ANY OBLIGATION TO ACQUIRE SUCH NOTE, (2)
THROUGH A PLACEMENT AGENT TO AN INSTITUTIONAL ACCREDITED INVESTOR, SOPHISTICATED
INDIVIDUAL ACCREDITED INVESTOR OR A QIB, OR (3) TO A QIB IN A TRANSACTION THAT
MEETS THE REQUIREMENTS OF RULE 144A AND (B) IN MINIMUM AMOUNTS OF $250,000.
EXHIBIT B
Further Provisions Relating to Indemnification
(a) The Issuer agrees to reimburse each Indemnitee for all expenses
(including reasonable fees and disbursements of internal and external counsel)
as they are incurred by it in connection with investigating or defending any
loss, claim, damage, liability or action in respect of which indemnification may
be sought under Section 5 of the Agreement (whether or not it is a party to any
such proceedings).
(b) Promptly after receipt by an Indemnitee of notice of the existence of a
Claim, such Indemnitee will, if a claim in respect thereof is to be made against
the Issuer, notify the Issuer in writing of the existence thereof; provided that
(i) the omission so to notify the Issuer will not relieve the Issuer from any
liability which it may have hereunder unless and except to the extent it did not
otherwise learn of such Claim and such failure results in the forfeiture by the
Issuer of substantial rights and defenses, and (ii) the omission so to notify
the Issuer will not relieve it from liability which it may have to an Indemnitee
otherwise than on account of this indemnity agreement. In case any such Claim is
made against any Indemnitee and it notifies the Issuer of the existence thereof,
the Issuer will be entitled to participate therein, and to the extent that it
may elect by written notice delivered to the Indemnitee, to assume the defense
thereof, with counsel reasonably satisfactory to such Indemnitee; provided that
if the defendants in any such Claim include both the Indemnitee and the Issuer,
and the Indemnitee shall have concluded that there may be legal defenses
available to it which are different from or additional to those available to the
Issuer, the Issuer shall not have the right to direct the defense of such Claim
on behalf of such Indemnitee, and the Indemnitee shall have the right to select
separate counsel to assert such legal defenses on behalf of such Indemnitee.
Upon receipt of notice from the Issuer to such Indemnitee of the Issuer's
election so to assume the defense of such Claim and approval by the Indemnitee
of counsel, the Issuer will not be liable to such Indemnitee for expenses
incurred thereafter by the Indemnitee in connection with the defense thereof
(other than reasonable costs of investigation) unless (i) the Indemnitee shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it being
understood, however, that the Issuer shall not be liable for the expenses of
more than one separate counsel (in addition to any local counsel in the
jurisdiction in which any Claim is brought), approved by the Dealer,
representing the Indemnitee who is party to such Claim), (ii) the Issuer shall
not have employed counsel reasonably satisfactory to the Indemnitee to represent
the Indemnitee within a reasonable time after notice of existence of the Claim
or (iii) the Issuer has authorized in writing the employment of counsel for the
Indemnitee. The indemnity, reimbursement and contribution obligations of the
Issuer hereunder shall be in addition to any other liability the Issuer may
otherwise have to an Indemnitee and shall be binding upon and inure to the
benefit of any successors, assigns, heirs and personal representatives of the
Issuer and any Indemnitee. The Issuer agrees that without the Dealer's prior
written consent, it will not settle, compromise or consent to the entry of any
judgment in any Claim in respect of which indemnification may be sought under
the indemnification provision of the Agreement (whether or not the Dealer or any
other Indemnitee is an actual or potential party to such Claim), unless such
settlement, compromise or consent includes an unconditional release of each
Indemnitee from all liability arising out of such Claim.