AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 29, 2004
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. 2004 OMNIBUS EQUITY AND INCENTIVE PLAN
(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 SECRETARY CALFEE, HALTER & GRISWOLD LLP
RPM INTERNATIONAL INC. 1400 MCDONALD INVESTMENT CENTER
P.O. BOX 777 800 SUPERIOR AVENUE
2628 PEARL ROAD CLEVELAND, OHIO 44114-2688
MEDINA, OHIO 44258 (216) 622-8200
(330) 273-5090
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To Be To Be Price Per Share/ Offering Registration
Registered Registered Obligation Price Fee
---------------------------- ---------------------- --------------------- ----------------------- ----------------------
Common Stock, par value
$0.01 per share(1) 6,000,000 shares (2) $17.36 (3) $104,160,000.00 $13,197.07
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(1) Includes 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.
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers additional
shares of Common Stock that may be issued or become issuable under the
terms of the Plan 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 October 22, 2004.
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, 2004;
(b) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended August 31, 2004;
(c) The Company's Current Report on Form 8-K, filed on September
30, 2004;
(d) The description of the Company's Common Stock and the Rights
to purchase shares of the Company's Common Stock contained in
the Company's Registration Statement on Form S-3 (Registration
No. 333-108647), filed with the Commission on September 9,
2003, and any amendments and reports filed for the purpose of
updating that description; and
(e) 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 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.
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ITEM 4. DESCRIPTION OF SECURITIES.
A description of the Common Stock and the Rights to purchase shares of
Common Stock is incorporated herein by reference. See Item 3.
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 is 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 or not opposed to 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
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 fiduciary duty.
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 or 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.
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Accordingly, Article VIII of the Company's Amended and Restated Certificate of
Incorporation (the "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 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.
ITEM 8. EXHIBITS.
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
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 of 1933;
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(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% 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 Securities
Exchange Act of 1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Sections 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 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 of 1933 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 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action,
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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 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 29th day of
October, 2004.
RPM INTERNATIONAL INC.
By: /s/ Frank C. Sullivan
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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 29th day of October, 2004.
Signature Title
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/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
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Thomas C. Sullivan
/s/ Dr. Max D. Amstutz Director
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Dr. Max D. Amstutz
/s/ Edward B. Brandon Director
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Edward B. Brandon
/s/ Bruce A. Carbonari Director
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Bruce A. Carbonari
Signature Title
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/s/ James A. Karman Director
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James A. Karman
/s/ Donald K. Miller Director
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Donald K. Miller
/s/ William A. Papenbrock Director
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William A. Papenbrock
/s/ Albert B. Ratner Director
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Albert B. Ratner
/s/ William B. Summers, Jr. Director
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William B. Summers, Jr.
/s/ Dr. Jerry Sue Thornton Director
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Dr. Jerry Sue Thornton
/s/ Joseph P. Viviano Director
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Joseph P. Viviano
EXHIBIT INDEX
Exhibit No. Description
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4.1 Specimen Certificate of common stock, par value $0.01 per
share, of the Company, which is incorporated herein by
reference to Exhibit 4.3 to the Company's Registration
Statement on Form S-8 (Registration No. 333-101501), as filed
with the Commission on November 27, 2002.
4.2 Rights Agreement by and between RPM International Inc. (as
successor to RPM, Inc.) and Harris Trust and Savings Bank
dated as of April 28, 1999, 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.
4.2.1 Amendment to Rights Agreement dated as of December 18, 2000 by
and 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.
4.2.2 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.,
which is incorporated herein by reference to Exhibit 4.4.2
to the Company's Registration Statement on Form S-8
(Registration No. 333-101501), as filed with the Commission on
November 27, 2002.
4.3 RPM International Inc. 2004 Omnibus Equity and Incentive Plan.
5.1 Opinion of Calfee, Halter & Griswold LLP as to the validity of
the securities being offered.
23.1 Consent of Ciulla, Smith & Dale, LLP.
23.2 Consent of Calfee, Halter & Griswold LLP (included in Exhibit
5.1).
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