AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 27, 2002
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RPM INTERNATIONAL INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 02-0642224
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
P.O. BOX 777
2628 PEARL ROAD
MEDINA, OHIO 44258
(Address of Principal Executive Offices, Including Zip Code)
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RPM INTERNATIONAL INC. 401(k) TRUST AND PLAN, AS AMENDED
RPM INTERNATIONAL INC. UNION 401(k) RETIREMENT SAVINGS TRUST AND PLAN,
AS AMENDED
(Full Title of the Plan)
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FRANK C. SULLIVAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
RPM INTERNATIONAL INC.
P.O. BOX 777
2628 PEARL ROAD
MEDINA, OHIO 44258
(330) 273-5090
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
COPIES TO:
P. KELLY TOMPKINS, ESQ. EDWARD W. MOORE, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND CALFEE, HALTER & GRISWOLD LLP
SECRETARY 1400 MCDONALD INVESTMENT CENTER
RPM INTERNATIONAL INC. 800 SUPERIOR AVENUE
P.O. BOX 777 CLEVELAND, OHIO 44114-2688
2628 PEARL ROAD (216) 622-8200
MEDINA, OHIO 44258
(330) 273-5090
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CALCULATION OF REGISTRATION FEE
============================ ===================== ===================== ===================== =====================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To Be To Be Price Per Offering Registration
Registered Registered Share Price Fee
---------------------------- --------------------- --------------------- --------------------- ---------------------
Common stock, par value
$0.01 per share(1) 650,000 shares(2) $14.405(3) $9,363,250 $862
============================ ===================== ===================== ===================== =====================
(1) Includes rights (the "Rights") to purchase shares of common stock, par
value $0.01 per share (the "Common Stock"), of RPM International Inc.
(the "Company") under the Company's Rights Agreement, as amended, that,
prior to the occurrence of certain events, will not be exercisable or
evidenced separately from the shares of Common Stock. In addition,
pursuant to Rule 416(c) under the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement also covers an
indeterminate amount of interests issuable under the Company's 401(k)
Trust and Plan, as amended, and Union 401(k) Retirement Savings Trust
and Plan, as amended (collectively, the "Plans"). A total of 625,000
shares of Common Stock will be registered for the 401(k) Trust and
Plan, as amended, and a total of 25,000 shares of Common Stock will be
registered for the Union 401(k) Retirement Savings Trust and Plan, as
amended.
(2) Pursuant to Rule 416 under the Securities Act, this Registration
Statement also covers additional shares of Common Stock that may be
issued or become issuable under the respective terms of the Plans in
order to prevent dilution resulting from any stock split, stock
dividend or similar transaction.
(3) Estimated in accordance with Rule 457(c) and (h) under the Securities
Act solely for the purpose of calculating the registration fee and
based upon the average of the high and low prices of the Common Stock
reported on the New York Stock Exchange on November 20, 2002.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Company, previously filed with the
Securities and Exchange Commission (the "Commission"), are incorporated herein
by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended May 31, 2002;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended August 31, 2002;
(c) The Company's Current Report on Form 8-K, filed on October 15,
2002; and
(d) The Company's Registration Statement on Form 8-A, filed with
the Commission on May 11, 1999, related to the Rights.
All documents subsequently filed by the Company or the Plans 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.
The Company's authorized capital stock consists of 300,000,000 shares
of Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per
share (the "Preferred Stock"). As of October 15, 2002, there were 114,890,987
shares of Common Stock outstanding. No shares of Preferred Stock were
outstanding as of the date of this Registration Statement.
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COMMON STOCK
The holders of Common Stock are entitled to one vote per share on all
matters to be voted upon by stockholders generally, including the election of
directors. There are no cumulative voting rights, and, as a result, a plurality
of stockholders voting are able to elect directors. Holders of Common Stock are
entitled to receive ratably dividends, if any, as may be declared from time to
time by the board of directors out of funds legally available for that purpose.
In the event of the Company's liquidation, dissolution or winding up, the
holders of Common Stock are entitled to share ratably in all assets remaining
after payment of liabilities, subject to prior distribution rights of
outstanding shares of Preferred Stock, if any. The holders of Common Stock have
no preemptive or similar rights or other subscription rights. There are no
redemption or sinking fund provisions applicable to the Common Stock. All
outstanding shares of Common Stock are legally issued, fully paid and
nonassessable.
PREFERRED STOCK
The Company's board of directors has the authority, without stockholder
approval, to issue shares of Preferred Stock in one or more series and to fix
the number of shares and terms of each series. The board may determine the
designation and other terms of each series, including, among others:
- dividend rights;
- voting powers;
- preemptive rights;
- conversion rights;
- redemption rights; and
- liquidation rights.
The issuance of Preferred Stock, while providing desired flexibility in
connection with possible acquisitions and other corporate purposes, could
adversely affect the voting power of holders of Common Stock. It also could
affect the likelihood that holders of Common Stock will receive dividend
payments and payments upon liquidation.
RIGHTS PLAN
Rights
In connection with the reincorporation, the Company assumed the Rights
Agreement by and between RPM, Inc. and National City Bank (as successor to
Harris Trust and Savings Bank), dated as of April 28, 1999, as amended (the
"Rights Agreement"). The Company's board of directors has declared a dividend of
one Right for each outstanding share of Common Stock.
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Rights have been issued in connection with each outstanding share of Common
Stock; and Rights will be issued in connection with shares of Common Stock
issued subsequently until the distribution date, and, in certain circumstances,
for Common Stock issued after the distribution date referred to below. Each
Right, when it becomes exercisable as described below, will entitle the
registered holder to purchase from the Company one-tenth of a share of Common
Stock at a price of $7.00, or $70.00 per whole share, subject to adjustment in
certain circumstances. A more detailed description and terms of the Rights are
set forth in the Rights Agreement. The Rights will not be exercisable until the
distribution date and will expire on the tenth annual anniversary of the Rights
Agreement, unless earlier redeemed by the Company. Until a Right is exercised,
the holder, as such, will have no rights as a stockholder, including the right
to vote or to receive dividends.
Distribution Date
Under the Rights Agreement, the "distribution date" is the earlier of:
(1) such time as the Company learns that a person or group, including
any affiliate or associate of such person or group, has acquired, or
has obtained the right to acquire, beneficial ownership of more than
15% of the Company's outstanding voting securities (such person or
group being an "acquiring person"), unless provisions preventing
accidental triggering of the distribution of the Rights apply, and
(2) the close of business on such date, if any, as may be designated by
the Company's board of directors following the commencement of, or
first public disclosure of an intent to commence, a tender or exchange
offer for more than 15% or more of the outstanding shares of voting
securities.
Triggering Event and Effect of Triggering Event
When there is an acquiring person, the Rights will entitle each holder,
other than such acquiring person, of a right to purchase, at the purchase price,
that number of shares of Common Stock that at the time of such event would have
a market value of twice the purchase price.
If the Company is acquired in a merger or other business combination by
an acquiring person or an affiliate or associate of an acquiring person, or if
50% or more of the Company's assets or assets representing 50% or more of the
Company's earning power are sold to an acquiring person or an affiliate or
associate of an acquiring person, each Right will entitle its holder, other than
Rights beneficially owned by such acquiring person, to purchase, for the
purchase price, that number of shares of common stock of such corporation which
at the time of the transaction would have a market value of twice the purchase
price.
Any Rights that are at any time beneficially owned by an acquiring
person, or any affiliate or associate of an acquiring person, will be null and
void and nontransferable, and any holder of any such Right will be unable to
exercise or transfer any such Right.
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Redemption
At any time prior to the earlier of (i) such time as a person or group
becomes an acquiring person and (ii) the expiration date, the Company's board of
directors may redeem the Rights in whole, but not in part, at a price of $.001
per right, which amount shall be subject to adjustment as provided in the Rights
Agreement. Immediately upon the action of the Company's board of directors
ordering the redemption of the Rights, and without any further action and
without any notice, the right to exercise the Rights will terminate and the only
right of the holders of Rights will be to receive the redemption price.
In addition, at any time after there is an acquiring person, the
Company's board of directors may elect to exchange each Right for consideration
per Right consisting of one share of Common Stock, subject to adjustment.
Amendment
At any time prior to the distribution date, the Company may, without
the approval of any holder of any Rights, supplement or further amend any
provision of the Rights Agreement, including the date on which the expiration
date or distribution date shall occur, the definition of acquiring person or the
time during which the Rights may be redeemed, except that no supplement or
amendment shall be made that reduces the redemption price other than under
certain adjustments therein.
Certain Effects of the Rights Agreement
The Rights Agreement is designed to protect the Company's stockholders
in the event of unsolicited offers to acquire the Company and other coercive
takeover tactics which, in the opinion of the Company's board of directors,
could impair the ability of the board to represent stockholder interests. The
provisions of the Rights Agreement may render an unsolicited takeover of the
Company more difficult or less likely to occur or might prevent such a takeover,
even though such takeover may offer the Company's stockholders the opportunity
to sell their stock at a price above the prevailing market rate and may be
favored by a majority of the Company's stockholders.
ANTI-TAKEOVER EFFECTS OF CERTIFICATE OF INCORPORATION, BY-LAWS AND THE DELAWARE
GENERAL CORPORATION LAW
There are provisions in the Company's Amended and Restated Certificate
of Incorporation ("Certificate of Incorporation") and Amended and Restated
By-Laws ("By-Laws"), and Delaware General Corporation Law that could discourage
potential takeover attempts. They could also make it more difficult for
stockholders to change management. These provisions could adversely affect the
market price of the Company's Common Stock. These provisions include:
Authorized But Unissued Stock. The authorized but unissued Common Stock
and Preferred Stock may be issued without stockholder approval (although the
board of directors has represented that it will not issue any series of
Preferred Stock for any defensive or anti-takeover purpose without stockholder
approval). Authorized but unissued stock may be used for a variety of corporate
purposes, including future public offerings to raise additional capital,
corporate
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acquisitions and employee benefit plans. The existence of authorized
but unissued Common Stock and Preferred Stock could render it more difficult or
discourage an attempt to obtain control of the Company by means of a proxy
contest, tender offer, merger or otherwise.
Staggered Board. The Company's board of directors is divided into three
classes, with regular three-year staggered terms. This classification system
increases the difficulty of replacing a majority of the directors and may tend
to discourage a third-party from making a tender offer or otherwise attempting
to gain control of the Company. In addition, under Delaware law and the
Company's Certificate of Incorporation and By-Laws, the Company's directors may
be removed from office by the stockholders only for cause and only in the manner
provided for in the Company's Certificate of Incorporation. These factors may
maintain the incumbency of the Company's board of directors.
Amendment of Certificate of Incorporation. Under Delaware law, in
general, to amend a corporation's certificate of incorporation, the directors of
the corporation must first adopt a resolution deeming the amendment advisable
and then the holders of a majority of the outstanding stock entitled to vote
must vote in favor of the amendment. The Company's Certificate of Incorporation
does not change the effect of Delaware law in this regard, except that the
provision in the Company's Certificate of Incorporation regarding the number,
election and terms of directors may not be repealed or amended without the vote
of the holders of not less than 80% of the Company's voting stock, voting as a
single class.
Amendment of By-Laws. Under Delaware law, the power to adopt, amend or
repeal by-laws is conferred upon the stockholders. A corporation may, however,
in its certificate of incorporation also confer upon the board of directors the
power to adopt, amend or repeal its by-laws. The Company's Certificate of
Incorporation and By-Laws grant the Company's board of directors the power to
adopt, amend or repeal the Company's By-Laws at any meeting of the board. The
Company's stockholders also may adopt, amend or repeal the Company's By-Laws by
a vote of a majority of the Company's voting stock, except that the provision in
the Company's By-Laws regarding the number, election and terms of directors may
not be repealed or amended without the vote of the holders of not less than 80%
of the Company's voting stock, voting as a single class.
Stockholder Action by Written Consent; Special Meetings of
Stockholders. The Company's By-Laws provide that no action that is required or
permitted to be taken by the Company's stockholders at any annual or special
meeting may be taken by written consent of stockholders in lieu of a meeting,
and that, unless otherwise prescribed by law, a special meeting of stockholders
may be called only by the chairman of the board, the president, a majority of
the board of directors or the chairman of the board or president at the written
request of stockholders holding a majority of the Company's voting stock.
Interested Stockholder Rule. The Company is a Delaware corporation and
is subject to Section 203 of the Delaware General Corporation Law, which
regulates corporate acquisitions. Section 203 prevents an "interested
stockholder," which is defined generally as a person owning 15% or more of a
corporation's voting stock, or any affiliate or associate of that person, from
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engaging in a broad range of "business combinations" with the corporation for
three years after becoming an interested stockholder unless:
- the board of directors of the corporation had previously
approved either the business combination or the transaction
that resulted in the stockholder's becoming an interested
stockholder;
- upon completion of the transaction that resulted in the
stockholder's becoming an interested stockholder, that person
owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding
shares owned by persons who are directors and also officers
and shares owned in employee stock plans in which participants
do not have the right to determine confidentially whether
shares held subject to the plan will be tendered; or
- following the transaction in which that person became an
interested stockholder, the business combination is approved
by the board of directors of the corporation and holders of at
least two-thirds of the outstanding voting stock not owned by
the interested stockholder.
Under Section 203, the restrictions described above also do not apply
to specific business combinations proposed by an interested stockholder
following the announcement or notification of designated extraordinary
transactions involving the corporation and a person who had not been an
interested stockholder during the previous three years or who became an
interested stockholder with the approval of a majority of the corporation's
directors, if such extraordinary transaction is approved or not opposed by a
majority of the directors who were directors prior to any person becoming an
interested stockholder during the previous three years or were recommended for
election or elected to succeed such directors by a majority of such directors.
Section 203 may make it more difficult for a person who would be an
interested stockholder to effect various business combinations with a
corporation for a three-year period.
LIMITATIONS ON LIABILITY; INDEMNIFICATION OF OFFICERS AND DIRECTORS
Under Delaware law and Article VIII of the Company's Certificate of
Incorporation, the Company's directors will not be personally liable to the
Company or the Company's stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability:
- for any breach of the duty of loyalty to the Company or the
Company's stockholders;
- for acts or omissions not in good faith or involving
intentional misconduct or a knowing violation of the law;
- for unlawful payment of a dividend or unlawful stock purchases
or redemptions; and
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- for any transaction from which the director derived an
improper personal benefit.
As a result, neither the Company nor the Company's stockholders have
the right, through stockholders' derivative suits on the Company's behalf, to
recover monetary damages against a director for breach of fiduciary duty as a
director, including breaches resulting from grossly negligent behavior, except
in the situations described above.
Under Delaware law, Delaware corporations may indemnify directors and
officers from liability if the person acted in good faith and in a manner
reasonably believed by such person to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal actions, if the person had
no reason to believe his or her action was unlawful. In the case of an action by
or on behalf of a corporation, indemnification may not be made if the person
seeking indemnification is adjudged liable to the corporation, unless the
Delaware Court of Chancery or the court in which such action was brought
determines upon application that, despite the adjudication but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnification. The indemnification provisions of Delaware law require
indemnification of directors and officers who have been successful on the merits
or otherwise in defense of any action, suit or proceeding that he or she was a
party to by reason of the fact that he or she is or was a director or officer of
the corporation. Delaware law permits corporations to advance amounts to
directors and officers in payment of expenses. The indemnification authorized by
Delaware law is not exclusive and is in addition to any other rights granted to
directors under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
The Company's indemnification arrangements are set forth in its
Certificate of Incorporation. Article IX of the Company's Certificate of
Incorporation provides that the Company shall indemnify any person against all
expenses, liability and loss reasonably incurred or suffered by such person in
connection with the defense of either any action, suit or proceeding to which he
or she may be a party defendant or any claim of liability asserted against such
person by reason of the fact that he or she is or was the Company's director or
he or she is or was serving at the Company's request as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, provided that he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the Company's
best interests, and, with respect to any criminal action or proceeding, if he or
she had no reasonable cause to believe his or her action was unlawful.
In addition, unless ordered by a court, indemnification shall be made
by the Company only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper because the person has met
the applicable standard of conduct under Delaware law. This determination is
made, with respect to a person who is a director or officer at the time of such
determination, by (i) a majority vote of the directors who are not parties to or
threatened with the action, even though less than a quorum, (ii) a committee of
such directors designated by a majority vote of such directors, even though less
than a quorum, (iii) if there are no such directors, or if such directors so
direct, independent legal counsel in a written opinion or (iv) the stockholders.
The indemnification provided for in the Company's Certificate of Incorporation
is not exclusive of any other rights to which a director or officer may be
entitled to under any statute, the Company's Certificate of Incorporation, the
Company's By-Laws, any agreement, a vote of
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stockholders or disinterested directors or otherwise. The Company has also
entered into Indemnification Agreements under which the Company has agreed,
among other things, to indemnify its directors and officers to the maximum
extent then authorized or permitted by the Company's Certificate of
Incorporation or Delaware law.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Company's Common Stock is
National City Bank. Its address is 1900 E. 9th Street, Cleveland, Ohio 44114,
and its telephone number is (800) 622-6757.
LISTING
The Company's Common Stock is quoted on the New York Stock Exchange
under the trading symbol "RPM".
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") sets forth the conditions and limitations governing the
indemnification of officers, directors and other persons. Section 145 provides
that a corporation shall have the power 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, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation or was serving at the request of the corporation in a
similar capacity with another corporation or other entity, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
incurred in connection therewith if the person acted in good faith and in a
manner that the person reasonably believed to be in the best interests of the
corporation. With respect to a suit by or in the right of the corporation,
indemnity may be provided to the foregoing persons under Section 145 on a basis
similar to that set forth above, except that no indemnity may be provided in
respect of any claim, issue or matter as to which such person has been adjudged
to be liable to the corporation unless and to the extent that the Delaware Court
of Chancery or the court in which such action, suit or proceeding was brought
determines that despite the adjudication of liability, but in view of all the
circumstances of the case, such person is entitled to indemnity for such
expenses as the court deems proper. Moreover, Section 145 provides for mandatory
indemnification of a director, officer, employee or agent of the corporation to
the extent that such person has been successful in defense of any such action,
suit or proceeding and provides that a corporation may pay the expenses of an
officer or director in defending an action, suit or proceeding upon receipt of
an undertaking to repay such amounts if it is ultimately determined that such
person is not entitled to be indemnified. Section 145 establishes provisions for
determining that a given person is entitled to indemnification, and also
provides that the indemnification provided by or
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granted under Section 145 is not exclusive of any rights to indemnity or
advancement of expenses to which such person may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 102(b)(7) of the DGCL permits corporations to eliminate or
limit the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of the director's duty of care.
Specifically, this section provides that a director of a corporation shall not
be personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith that involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for
any transaction from which the director derived an improper personal benefit.
Accordingly, Article VIII of the Company's Certificate of Incorporation provides
that to the full extent permitted by the DGCL, no director of the Company shall
be personally liable to the Company or its stockholders for or with respect to
any acts or omissions in the performance of his or her duties as a director of
the Company.
Article IX of the Certificate of Incorporation provides in part that
the Company shall indemnify any director or officer who was or is a party or is
threatened to be made a party to, or is involved in, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director or
officer of the Company, or is or was serving at the request of the Company, as a
director, officer, employee or agent of certain other entities, against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such person in connection with such action, suit or proceeding.
Both the DGCL and Article IX of the Certificate of Incorporation
provide that the Company may maintain insurance to cover losses incurred
pursuant to liability of directors and officers of the Company. The Company has
purchased a Directors and Officers Liability Insurance Policy, which insures the
directors and officers against certain liabilities that might arise in
connection with their respective positions with the Company.
The Company has entered into Indemnification Agreements with each of
its directors and 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 officer to the
maximum extent then authorized or permitted by the provisions of the Certificate
of Incorporation, the DGCL, or by any amendment(s) thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
The Company hereby undertakes that it will submit or has submitted the
Plans and any amendments thereto to the Internal Revenue Service in a timely
manner and has made or will make all changes required by the Internal Revenue
Service in order to qualify such Plans under Section 401 of the Internal Revenue
Code of 1986, as amended.
ITEM 9. UNDERTAKINGS.
(a) The Company 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
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
end 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 a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in this effective Registration
Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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 Company pursuant to Sections 13 or 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement
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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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
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 may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 Securities 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 26th day of
November, 2002.
RPM INTERNATIONAL INC.
By: /s/ Frank C. Sullivan
---------------------------------------
Frank C. Sullivan
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 26th day of November, 2002.
Signature Title
--------- -----
/s/ Frank C. Sullivan President, Chief Executive Officer and
----------------------------- a Director (Principal Executive Officer)
Frank C. Sullivan
/s/ Robert L. Matejka Vice President, Chief Financial Officer and
----------------------------- Controller (Principal Financial and
Robert L. Matejka Accounting Officer)
/s/ Thomas C. Sullivan Chairman of the Board of Directors
-----------------------------
Thomas C. Sullivan
/s/ Max D. Amstutz Director
-----------------------------
Max D. Amstutz
/s/ Edward B. Brandon Director
-----------------------------
Edward B. Brandon
/s/ Bruce A. Carbonari Director
-----------------------------
Bruce A. Carbonari
II-12
Signature Title
--------- -----
/s/ E. Bradley Jones Director
-------------------------------------------------
E. Bradley Jones
/s/ James A. Karman Director
-------------------------------------------------
James A. Karman
/s/ Donald K. Miller Director
-------------------------------------------------
Donald K. Miller
/s/ William A. Papenbrock Director
-------------------------------------------------
William A. Papenbrock
/s/ Albert B. Ratner Director
-------------------------------------------------
Albert B. Ratner
/s/ Jerry Sue Thornton Director
-------------------------------------------------
Jerry Sue Thornton
/s/ Joseph P. Viviano Director
-------------------------------------------------
Joseph P. Viviano
II-13
The Plans. Pursuant to the requirements of the Securities Act of 1933,
the administrator of the employee benefit plans 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 26th day of
November, 2002.
RPM INTERNATIONAL INC. 401(k)
TRUST AND PLAN
By: RPM International Inc., Plan Administrator
By: /s/ Janeen Kastner
-----------------------------------------------
Janeen Kastner, Director of Human
Resources and Administration
RPM INTERNATIONAL INC. UNION
401(k) RETIREMENT SAVINGS
TRUST AND PLAN
By: RPM International Inc., Plan Administrator
By: /s/ Janeen Kastner
-----------------------------------------------
Janeen Kastner, Director of Human
Resources and Administration
II-14
EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT DESCRIPTION
-------------- -------------------
4.1 Amended and Restated Certificate of Incorporation of
the Company. (x)
4.2 Amended and Restated By-Laws of the Company. (x)
4.3 Specimen Certificate of Common Stock, par value $0.01
per share, of the Company. (x)
4.4 Rights Agreement, dated as of April 28, 1999, between
RPM International Inc. (as successor to RPM, Inc.)
and Harris Trust and Savings Bank, which is
incorporated herein by reference to Exhibit 4.1 to
the Company's Registration Statement on Form 8-A, as
filed with the Commission on May 11, 1999.
4.4.1 Amendment to Rights Agreement, dated as of December
18, 2000, among RPM International Inc. (as successor
to RPM, Inc.), Computershare Investor Services
(formerly Harris Trust and Savings Bank) and National
City Bank, which is incorporated herein by reference
to Exhibit 4.4.1 of the Company's Annual Report on
Form 10-K for the period ended May 31, 2001.
4.4.2 Second Amendment to Rights Agreement, dated as of
October 15, 2002, among RPM, Inc., National City Bank
(as successor rights agent to Computershare Investor
Services, formerly Harris Trust and Savings Bank) and
RPM International Inc. (x)
4.5 RPM International Inc. 401(k) Trust and Plan, as
amended. (x)
4.5.1 Amendment No. 1 to RPM International Inc. 401(k)
Trust and Plan, as amended. (x)
4.5.2 Amendment No. 2 to RPM International Inc. 401(k)
Trust and Plan, as amended. (x)
4.6 RPM International Inc. Union 401(k) Retirement
Savings Trust and Plan, as amended. (x)
4.6.1 Amendment No. 1 to RPM International Inc. Union
401(k) Retirement Savings Trust and Plan,
as amended. (x)
4.6.2 Amendment No. 2 to RPM International Inc. Union
401(k) Retirement Savings Trust and Plan, as amended.
(x)
5.1 Opinion of Calfee, Halter & Griswold LLP as to the
validity of the securities
E-1
being offered. (x)
23.1 Consent of Ciulla, Smith & Dale, LLP. (x)
23.2 Consent of Calfee, Halter & Griswold LLP (included in
Exhibit 5.1).
-----------------
(x) Filed herewith.
E-2