AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 27, 2002
REGISTRATION NO. 333-35967
REGISTRATION NO. 333-60104
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
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. 1996 KEY EMPLOYEES STOCK OPTION 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 MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
-------------------------------- --------------------- ---------------------- ----------------------- --------------------
See below(1). N/A N/A N/A N/A
================================ ===================== ====================== ======================= ====================
(1) No additional securities are to be registered, and registration fees were
paid upon filing of the original Registration Statements on Form S-8
(Registration Nos. 333-35967 and 333-60104). Therefore, no further
registration fee is required. The common stock, par value $0.01 per share,
of RPM International Inc. (the "Common Stock") previously registered
includes rights (the "Rights") to purchase shares of Common Stock under RPM
International Inc.'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.
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this "Amendment") to those certain
Registration Statements on Form S-8 (Registration Nos. 333-35967 and 333-60104,
collectively the "Registration Statement") is being filed pursuant to Rule 414
under the Securities Act of 1933, as amended (the "Securities Act") by RPM
International Inc., a Delaware corporation, which is the successor to the
reporting obligations of RPM, Inc., an Ohio corporation, following a statutory
merger effective 9:00 a.m. (Eastern Time), October 15, 2002, for the purpose of
changing RPM, Inc.'s state of incorporation to Delaware. Effective on that date,
RPM, Inc. became a subsidiary of RPM International Inc., a newly formed Delaware
holding company. The Delaware reincorporation was approved by shareholders on
October 11, 2002. The reincorporation was effected pursuant to an Agreement and
Plan of Merger, dated as of August 29, 2002, by and among RPM International
Inc., RPM, Inc. and RPM Merger Company, an Ohio corporation and wholly owned
subsidiary of RPM International Inc. As a result of the reincorporation, RPM
International Inc. became the successor issuer to RPM, Inc. under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and will succeed to RPM,
Inc.'s reporting obligations thereunder.
Except as modified by this Amendment, RPM International Inc., by virtue
of this Amendment, expressly adopts the Registration Statement as its own
registration statement for all purposes of the Securities Act and Exchange Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of RPM International Inc. (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;
(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-8 (Registration
No. 333-101501), filed with the Commission on November 27,
2002, and any amendments and reports filed for the purpose of
updating that description; and
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(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.
ITEM 4. DESCRIPTION OF SECURITIES.
Incorporated 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 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
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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 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 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 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
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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;
(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.
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(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 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
Post-Effective Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Cleveland,
State of Ohio, on this 27th day of November, 2002.
RPM INTERNATIONAL INC.
By: /s/ Frank C. Sullivan
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Frank C. Sullivan
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and
appoints Frank C. Sullivan, Ronald A. Rice, P. Kelly Tompkins, Edward W. Moore
and Arthur C. Hall III and each of them, each of whom may act without joinder of
the other, as his or her attorney-in-fact to sign on his or her behalf
individually and in the capacity stated below any and all post-effective
amendments to this Registration Statement that his or her attorney-in-fact may
deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to the Registration Statement has been signed by
the following persons in the capacities indicated on this 27th day of November,
2002.
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
------------------------------
Thomas C. Sullivan
/s/ Max D. Amstutz Director
------------------------------
Max D. Amstutz
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Signature Title
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/s/ Edward B. Brandon Director
------------------------------
Edward B. Brandon
/s/ Bruce A. Carbonari Director
------------------------------
Bruce A. Carbonari
/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
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EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT DESCRIPTION
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4.1 Amended and Restated Certificate of Incorporation of the
Company, which is incorporated herein by reference to Exhibit
4.1 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 Amended and Restated By-Laws of the Company, which are
incorporated herein by reference to Exhibit 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 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.
4.4 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., 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.
4.5 RPM International Inc. 1996 Key Employees Stock Option Plan.
(x)
4.5.1 Amendment No. 1 to RPM International Inc. 1996 Key Employees
Stock Option Plan, which is incorporated herein by reference
to Exhibit 10.7.1 of the Company's Annual Report on Form 10-K
for the period ended May 31,
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1998.
4.5.2 Amendment to RPM International Inc. 1996 Key Employees Stock
Option Plan, which is incorporated herein by reference to
Exhibit 4.3.1 of the Company's Registration Statement on Form
S-8 (Registration No. 333-60104), as filed with the Commission
on May 3, 2001.
4.5.3 Amendment No. 3 to RPM International Inc. 1996 Key Employees
Stock Option Plan. (x)
5.1 Opinion of Calfee, Halter & Griswold LLP as to the validity of
the securities 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).
24 Power of Attorney (included on signature page).
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(x) Filed herewith.
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