RPM International Inc S-3ASR
As filed with the Securities and Exchange Commission on
February 14, 2008
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF
1933
RPM INTERNATIONAL
INC.
(Exact name of registrant as
specified in its charter)
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Delaware
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02-0642224
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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2628 Pearl Road
P.O. Box 777
Medina, Ohio 44258
(330) 273-5090
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Edward W.
Moore, Esq.
Vice President, General Counsel
and Secretary
2628 Pearl Road
P.O. Box 777
Medina, Ohio 44258
(330) 273-5090
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
With a copy to:
Thomas F.
McKee, Esq.
Calfee, Halter & Griswold
LLP
1400 KeyBank Center
800 Superior Avenue
Cleveland, Ohio
44114-2688
(216) 622-8200
Approximate date of commencement of proposed sale to
public: From time to time after this registration
statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box: o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box: þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering: o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration number of the
earliest effective registration statement for the same
offering: o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box: þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box: o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2 of the Exchange Act. (Check One):
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Large accelerated
filer x
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Accelerated
filer o
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Non-accelerated
filer o
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Smaller reporting
company o
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(Do not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Amount to be Registered/Proposed Maximum
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Title of each Class of Securities to be
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Offering Price per Unit/Proposed Maximum
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Registered
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Aggregate Offering Price/Amount of Registration Fee(1)
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Debt Securities
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Common Stock, par value $0.01 per share(2)
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Preferred Stock, without par value
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Warrants
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Purchase Contracts
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Units(3)
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(1)
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An indeterminate aggregate initial
offering price and amount of the securities of each identified
class is being registered and may be offered and sold from time
to time at indeterminate prices. Separate consideration may or
may not be received for securities that are issuable upon
exercise, conversion or exchange of other securities or that are
issued in units. In accordance with Rules 456(b) and
457(r), the registrant is deferring payment of all of the
registration fee.
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(2)
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Each share of common stock includes
one common share purchase right as described under
Description of Capital Stock. No separate
consideration will be received for the common share purchase
rights.
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(3)
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Any securities registered hereunder
may be sold separately or as units with other securities
registered hereunder.
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Prospectus
RPM INTERNATIONAL
INC.
Debt
Securities
Common Stock
Preferred Stock
Warrants
Purchase Contracts
Units
We will provide the specific terms of these securities in
supplements to this prospectus. You should read this prospectus
and the applicable supplement carefully before you invest.
Our common stock is traded on the New York Stock Exchange under
the symbol RPM.
Investing in our securities involves risks. Please read the
risk factors discussed or incorporated by reference under the
section of the prospectus captioned Risk Factors on
page 4.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is
February 14, 2008.
ABOUT THIS
PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission
(SEC) using a shelf registration
procedure. Pursuant to that procedure and under this prospectus,
we may offer and sell:
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Debt Securities;
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Common Stock;
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Preferred Stock;
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Warrants;
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Purchase Contracts; and
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Units.
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The securities described above may be offered and sold in one or
more offerings. Each time we offer and sell securities under the
registration statement of which this prospectus is a part, we
will file with the SEC a prospectus supplement that will contain
specific information about the terms of that offering. The
prospectus supplement may also add, update, or change
information contained in this prospectus. You should read this
prospectus, and the applicable prospectus supplement, together
with the additional information described under the heading
Where You Can Find More Information.
The registration statement that contains this prospectus
contains additional information about our company and the
securities offered under this prospectus. That registration
statement can be read at the SEC website or at the SEC offices
mentioned under the heading Where You Can Find More
Information.
WHERE YOU CAN
FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements
and other information with the SEC. The reports, proxy
statements and other information that we file electronically
with the SEC are available to the public free of charge at the
SECs website at www.sec.gov. You may also read and copy
any document we file with the SEC, at prescribed rates, at the
SECs Public Reference Room at 100 F Street,
N.E., Room 1580, Washington, D.C. 20549. Please call
the SEC at
1-800-SEC-0330
for further information on the operation of its Public Reference
Room. You can also inspect our reports, proxy statements and
other information at the offices of the New York Stock Exchange,
20 Broad Street, New York, New York 10005.
We incorporate by reference into this prospectus the
information we file with the SEC, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is an
important part of this prospectus. Some information contained in
this prospectus updates the information incorporated by
reference into this prospectus, and information that we
subsequently file with the SEC will automatically update
information in this prospectus, as well as our other filings
with the SEC. In other words, in the case of a conflict or
inconsistency between information in this prospectus
and/or
information incorporated by reference into this prospectus, you
should rely on the information contained in the document that
was filed later. We incorporate by reference the documents
listed below and any filings we make with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934, as amended (the Exchange Act),
after the initial filing of the registration statement that
contains this prospectus and prior to the time that we sell all
the securities offered under this prospectus, other than the
portions of such documents that by statute, by designation in
such documents, or otherwise are not deemed to be filed with the
SEC or are not required to be incorporated herein by reference:
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Annual report on
Form 10-K
for the year ended May 31, 2007;
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Quarterly reports on
Form 10-Q
for the quarters ended August 31, 2007 and
November 30, 2007 and amended quarterly report on Form
10-Q/A for
the quarter ended November 30, 2007;
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Current reports on
Form 8-K
filed on June 1, 2007 (with respect to Item 5.02
only), July 18, 2007 (with respect to Item 5.02 only)
January 18, 2008 and January 28, 2008 (only with
respect to Item 5.02 and the exhibits related thereto);
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1
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The description of our common stock and rights to purchase
shares of our common stock contained in the Registration
Statement on
Form S-8
(Registration Number
333-101501),
filed with the SEC on November 27, 2002 and any amendments
and reports filed for the purpose of updating that
description; and
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Our Registration Statement on
Form 8-A,
filed with the SEC on May 11, 1999, related to the rights.
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We will provide to each person, including any beneficial owner,
to whom this prospectus is delivered any or all of these filings
(other than an exhibit to a filing unless that exhibit is
specifically incorporated by reference into that filing) at no
cost, upon written or oral request. You may request these
documents by writing to or telephoning us at the following
address:
Secretary
RPM International Inc.
2628 Pearl Road
P.O. Box 777
Medina, Ohio 44258
(330) 273-5090
You should rely only on the information incorporated by
reference or set forth in this prospectus or the applicable
prospectus supplement. We have not authorized anyone else to
provide you with additional or different information. We may
only use this prospectus to sell securities if it is accompanied
by a prospectus supplement. We are only offering these
securities in states where the offer is permitted. You should
not assume that the information in this prospectus or the
applicable prospectus supplement is accurate as of any date
other than the dates on the front of those documents.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus (including the information incorporated by
reference) contains, and any accompanying prospectus supplement
will contain, forward-looking statements. These statements
relate to our plans, expectations, estimates and beliefs of
future events or our future financial performance and involve
known and unknown risks, uncertainties and other factors that
may cause our actual results, levels of activity, performance or
achievements to be materially different from those expressed or
implied by any forward-looking statements. In some cases, you
can identify forward-looking statements by terminology such as
may, will, could,
would, should, expect,
plan, anticipate, target,
project, intend, believe,
estimate, predict,
potential, pro forma, seek
or continue or the negative of those terms or other
comparable terminology. These statements are only predictions
and we can give no assurance that such expectations will prove
to be correct. Some of the things that could cause our actual
results to differ substantially from our expectations are:
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general economic conditions;
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the prices and availability of raw materials, including assorted
resins and solvents; packaging, including plastic containers;
and transportation services, including fuel surcharges;
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continued growth in demand for our products;
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legal, environmental and litigation risks inherent in our
construction and chemicals businesses and risks related to the
adequacy of our insurance coverage for such matters;
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the effect of changes in interest rates;
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the effect of fluctuations in currency exchange rates upon our
foreign operations;
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the effect of non-currency risks of investing in and conducting
operations in foreign countries, including those relating to
domestic and international political, social, economic and
regulatory factors;
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risks and uncertainties associated with our ongoing acquisition
and divestiture activities;
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risks related to the adequacy of our contingent liability
reserves, including for existing and future asbestos-related
claims; and
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other factors referenced in this prospectus and any accompanying
prospectus supplement, including those set forth under the
caption Risk Factors.
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We undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new
information, future events or otherwise, after the date of this
prospectus to conform them to actual results. All of the
forward-looking statements are qualified in their entirety by
reference to the factors
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discussed under the caption Risk Factors, and by any
cautionary language in this prospectus and any accompanying
prospectus supplement. We caution you that these risk factors
may not be exhaustive. We operate in a continually changing
business environment, and new risk factors emerge from time to
time. Management cannot predict such new risk factors, nor can
it assess the impact, if any, of such new risk factors on our
businesses or the extent to which any factor or combination of
factors, may cause actual results to differ materially from
those projected in any forward-looking statements. In light of
these risks, uncertainties and assumptions, the forward-looking
events discussed in this prospectus might not occur.
You should carefully read this prospectus and any accompanying
prospectus supplement and the documents incorporated in this
prospectus by reference and contained in any accompanying
prospectus supplement in their entirety. They contain
information that you should consider when making your investment
decision.
3
RISK
FACTORS
Investing in our securities involves risks. Before deciding
whether to purchase any of our securities, you should carefully
consider the risks involved in an investment in our securities,
as set forth in:
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Item 1A, Risk Factors, in our Annual Report on
Form 10-K
for our fiscal year ended May 31, 2007;
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Item 1A, Risk Factors, in our Quarterly Reports on
Form 10-Q
for our fiscal quarters ended August 31 and November 30,
2007; and
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the other risks described in any prospectus supplement or in any
of the documents incorporated by reference in this prospectus.
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USE OF
PROCEEDS
We intend to use the net proceeds from the sale of the
securities for the repayment of debt and for other general
corporate purposes unless otherwise indicated in the applicable
prospectus supplement relating to a specific issuance of
securities. Our general corporate purposes include, but are not
limited to, repayment, redemption or refinancing of debt,
capital expenditures, investments in or loans to subsidiaries
and joint ventures, funding of possible acquisitions, working
capital, contributions to one or more of our pension plans,
satisfaction of other obligations and repurchase of our
outstanding debt or equity securities. Pending any such use, the
net proceeds from the sale of the securities may be invested in
short-term, investment grade, interest-bearing instruments. We
will include a more detailed description of the use of proceeds
of any specific offering in the applicable prospectus supplement
relating to an offering of securities under this prospectus.
RATIO OF EARNINGS
TO FIXED CHARGES
The following table sets forth the ratio of our earnings to our
fixed charges for the periods indicated:
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Six Months Ended
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Fiscal Years Ended May 31,
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November 30,
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2003(1)
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2004
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2005(2)
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2006(3)
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2007(4)
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2007
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2.28
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6.17
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4.11
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5.41
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5.81
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(1)
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Fiscal year 2003 income from
continuing operations before taxes includes the unfavorable
impact of asbestos charges of $140.0 million.
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(2)
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Fiscal year 2005 income from
continuing operations before taxes includes the unfavorable
impact of asbestos charges of $78.0 million.
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(3)
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Earnings were inadequate to cover
fixed charges for the fiscal year ended May 31, 2006. The
coverage deficiency for that fiscal year totaled
$181.2 million. Fiscal year 2006 income from continuing
operations before taxes includes the unfavorable impact of
asbestos charges of $380.0 million.
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(4)
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Fiscal year 2007 income from
continuing operations before taxes includes the favorable impact
of asbestos-related insurance settlement income of
$15.0 million.
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For purposes of computing the ratios of earnings to fixed
charges, earnings represent income from continuing operations
before taxes and cumulative effect of changes in accounting
principles plus fixed charges. Fixed charges consist of interest
expense, amortization of debt issuance costs and an estimation
of the interest portion of rental expense.
4
DESCRIPTION OF
CAPITAL STOCK
The following description of our capital stock, amended and
restated certificate of incorporation and amended and restated
by-laws is a summary only and is subject to the complete text of
our amended and restated certificate of incorporation, amended
and restated by-laws, and the rights agreement between us and
the rights agent named therein, which we have filed as exhibits
to this registration statement or to documents incorporated by
reference.
Common
Stock
The following description of our common stock, together with the
additional information included in any applicable prospectus
supplements, summarizes the material terms and provisions of our
common stock, but is not complete. For the complete terms of the
common stock, please refer to our amended and restated
certificate of incorporation, our amended and restated bylaws
and our rights agreement, which are incorporated by reference
into the registration statement that includes this prospectus.
Our amended and restated certificate of incorporation authorizes
us to issue up to 300,000,000 shares of common stock. As of
January 4, 2008, there were 121,782,386 shares of
common stock outstanding, net of treasury shares, held by 31,361
direct registered stockholders.
Our common stock is traded on the New York Stock Exchange under
the symbol RPM. The transfer agent and registrar for
our common stock is National City Bank. Its address is
1900 E. 9th Street, Cleveland, Ohio 44114, and
its telephone number is
(800) 622-6757.
The holders of our 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. The Company has adopted a
majority voting policy with regard to the election of directors
which requires that any director who does not receive a majority
of the votes cast for his or her election tender their
resignation to the board. 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 our 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.
Our amended and restated by-laws provide that special meetings
of stockholders can be called only by the chairman of the board,
the president, the majority of the board, and the chairman of
the board or the president at the written request of
stockholders owning a majority of shares of voting stock.
Preferred
Stock
Our 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:
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dividend rights;
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voting powers;
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preemptive rights;
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conversion rights;
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redemption rights; and
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liquidation rights.
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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
In connection with our 2002 reincorporation in Delaware, we
assumed the rights agreement by and between RPM, Inc. and
National City Bank (as successor to Computershare Investor
Services, formerly Harris
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Trust and Savings Bank), dated as of April 28, 1999, as
amended. Our board of directors has declared a dividend of one
right for each outstanding share of common stock. 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 shares of 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 us 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 the 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
us. 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 we learn 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 our 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 our 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% 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 we are 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 our assets or assets representing
50% or more of our 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.
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, our 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 our 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, our
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, we 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.
6
Certain
Effects of the Rights Agreement
The rights agreement is designed to protect our stockholders in
the event of unsolicited offers to acquire us and other coercive
takeover tactics which, in the opinion of our board of
directors, could impair its ability to represent stockholder
interests. The provisions of the rights agreement may render an
unsolicited takeover of us more difficult or less likely to
occur or might prevent such a takeover, even though such
takeover may offer our stockholders the opportunity to sell
their stock at a price above the prevailing market rate and may
be favored by a majority of our stockholders.
Anti-takeover
Effects of Certificate of Incorporation, By-Laws, and the
Delaware General Corporation Law
General
Corporation Law
There are provisions in our amended and restated certificate of
incorporation, our amended and restated by-laws, and the
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 our 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
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 us by means of a proxy contest, tender offer, merger
or otherwise.
Staggered
Board
Our 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 us. In
addition, under Delaware law and our amended and restated
certificate of incorporation and amended and restated by-laws,
our directors may be removed from office by the stockholders
only for cause and only in the manner provided for in our
amended and restated certificate of incorporation. These factors
may maintain the incumbency of our board of directors.
Amendment
of Certificate of Incorporation
Under Delaware law, in general, to amend a corporations
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. Our
amended and restated certificate of incorporation does not
change the effect of Delaware law in this regard, except that
the provision in our amended and restated 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 our 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.
Our amended and restated certificate of incorporation and
amended and restated by-laws grant our board of directors the
power to adopt, amend or repeal our by-laws at any meeting of
the board. Our stockholders also may adopt, amend or repeal our
by-laws by a vote of a majority of our voting stock, except that
the provision in our amended and restated 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
our voting stock, voting as a single class.
7
Stockholder
Action by Written Consent; Special Meetings of
Stockholders
Our amended and restated by-laws provide that no action that is
required or permitted to be taken by our 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 our voting stock.
Interested
Stockholder Rule
We are a Delaware corporation and are 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 corporations voting
stock, or any affiliate or associate of that person, from
engaging in a broad range of business combinations
with the corporation for three years after becoming an
interested stockholder unless:
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the board of directors of the corporation had previously
approved either the business combination or the transaction that
resulted in the stockholders becoming an interested
stockholder;
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upon completion of the transaction that resulted in the
stockholders 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
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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.
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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
corporations 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 our amended and
restated certificate of incorporation, our directors will not be
personally liable to us or our stockholders for monetary damages
for breach of fiduciary duty as a director, except, if required
by Delaware law, for liability:
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for any breach of the duty of loyalty to us or our stockholders;
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for acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of the law;
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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.
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As a result, neither we nor our stockholders have the right,
through stockholders derivative suits on our 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
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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 any director or officer who has 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.
Our indemnification arrangements are set forth in our amended
and restated certificate of incorporation. Article IX of
our amended and restated certificate of incorporation provides
that we 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 our director or he or she is or
was serving at our 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 our 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 us 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 our amended and restated
certificate of incorporation is not exclusive of any other
rights to which a director or officer may be entitled to under
any statute, our amended and restated certificate of
incorporation, our amended and restated by-laws, any agreement,
a vote of stockholders or disinterested directors or otherwise.
We have also entered into indemnity agreements under which we
have agreed, among other things, to indemnify our directors and
officers to the maximum extent then authorized or permitted by
our amended and restated certificate of incorporation or
Delaware law.
9
DESCRIPTION OF
DEBT SECURITIES
The following description of the terms of the Debt Securities
(as defined below) sets forth certain general terms and
provisions of the Debt Securities to which any prospectus
supplement may relate. The particular terms of the Debt
Securities offered by any prospectus supplement and the extent,
if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the prospectus
supplement relating to such Debt Securities. Accordingly, for a
description of the terms of a particular issue of Debt
Securities, reference must be made to both the prospectus
supplement relating thereto and to the following description.
The Debt Securities will be issued under an indenture (the
Indenture) dated as of February 14, 2008,
between us and The Bank of New York Trust Company, N.A.
(the Trustee). As used in this prospectus,
Debt Securities means the debentures, notes, bonds
and other evidences of indebtedness that we issue and the
Trustee authenticates and delivers under the Indenture.
We have summarized certain terms and provisions of the Indenture
in this section. The summary is not complete. We have also filed
the Indenture as an exhibit to the registration statement that
included this prospectus. You should read the Indenture for
additional information before you buy any Debt Securities. The
summary that follows includes references to section numbers of
the Indenture so that you can more easily locate these
provisions. Capitalized terms used but not defined in this
summary have the meanings specified in the Indenture.
General
The Debt Securities will be our direct unsecured obligations.
The Indenture does not limit the amount of Debt Securities that
we may issue and permits us to issue Debt Securities from time
to time. Debt Securities issued under the Indenture will be
issued as part of a series that has been established by us
pursuant to the Indenture (Section 2.01(b)). Unless a
prospectus supplement relating to Debt Securities states
otherwise, the Indenture and the terms of the Debt Securities
will not contain any covenants designed to afford holders of any
Debt Securities protection in a highly leveraged or other
transaction involving us that may adversely affect holders of
the Debt Securities.
A prospectus supplement relating to a series of Debt Securities
being offered will include specific terms relating to the
offering. These terms will include some or all of the following:
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the title and type of the Debt Securities;
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any limit on the total principal amount of the Debt Securities;
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the price at which the Debt Securities will be issued;
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the date or dates on which the principal of and premium, if any,
on the Debt Securities will be payable;
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the maturity date of the Debt Securities;
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if the Debt Securities will bear interest, and if so:
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the interest rate on the Debt Securities,
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the date from which interest will accrue,
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the record and interest payment dates for the Debt Securities or
the method of determining such rate,
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the first interest payment date, and
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any circumstances under which we may defer interest payments;
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if the amount of principal, interest or premium, if any, with
respect to the Debt Securities may be determined with reference
to an index or pursuant to a formula, the manner in which such
amounts will be determined;
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any optional conversion provisions that would permit us or the
Holders (as defined below) of Debt Securities to elect to
convert the Debt Securities prior to their final maturity;
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any optional redemption provisions that would permit us or the
Holders (as defined below) of Debt Securities to elect
redemption of the Debt Securities prior to their final maturity;
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any sinking fund or analogous provisions that would obligate us
to redeem, purchase or repay the Debt Securities prior to their
final maturity;
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the currency or currencies in which the Debt Securities will be
denominated and payable, if other than U.S. dollars;
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any provisions that would permit us or the Holders of the Debt
Securities to elect the currency or currencies in which the Debt
Securities are paid;
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whether the Debt Securities will be subordinated to our other
debt;
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any changes to or additional Events of Default (as defined
below);
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any changes to or additional covenants or provisions to the
Indenture;
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whether the Debt Securities will be issued in whole or in part
in the form of Global Securities and, if so, the Depositary for
those Global Securities (a Global Security means a
Debt Security that we issue in accordance with the Indenture to
represent all or part of a series of Debt Securities);
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any material United States federal income tax consequences of
the Debt Securities; and
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any other terms of the Debt Securities (which terms shall not be
prohibited by the provisions of the Indenture).
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A Holder means the person in whose name a particular
Debt Security is registered in the Security Register
(Section 1.01).
Payment
and Transfer
In the prospectus supplement relating to a series of Debt
Securities, we will designate a Place of Payment
where you can receive payment of the principal of and any
premium and interest on such Debt Securities or transfer such
Debt Securities. There will be no service charge for any
registration of transfer or exchange of the Debt Securities, but
we may require you to pay any tax or other governmental charge
payable in connection with a transfer or exchange of the Debt
Securities.
All funds which we pay to any paying agent for the payment of
principal, interest or premium, if any, with respect to the Debt
Securities of any series that remain unclaimed at the end of two
years after such principal, interest or premium shall have
become due and payable will be repaid to us, and the holders of
such Debt Securities will thereafter look only to us for payment
thereof.
Denominations
Unless the prospectus supplement states otherwise, the Debt
Securities will be issued only in registered form, without
coupons, in denominations of $1,000 each, or integral multiples
of $1,000.
Original
Issue Discount
Debt Securities may be issued under the Indenture as Original
Issue Discount Securities and sold at a substantial discount
below their stated principal amount. If a Debt Security is an
Original Issue Discount Security, that means that an
amount less than the principal amount of the Debt Security will
be due and payable upon a declaration of acceleration of the
maturity of the Debt Security pursuant to the Indenture
(Section 1.01). The prospectus supplement will describe the
federal income tax consequences and other special factors which
should be considered prior to purchasing any Original Issue
Discount Securities.
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Consolidation,
Merger or Sale of Assets
The Indenture generally permits a consolidation or merger
between us and another company. It also permits the sale or
transfer by us of all or substantially all of our property and
assets and the purchase by us of all or substantially all of the
property and assets of another company. These transactions are
permitted if:
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the resulting or acquiring company (if other than us) is a U.S.
corporation, partnership or trust which assumes, or has its
parent company assume, all of our responsibilities and
liabilities under the Indenture, including the payment of all
amounts due on the Debt Securities and performance of the
covenants in the Indenture; and
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immediately after the transaction, no Event of Default exists.
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If we consolidate or merge with or into any other corporation or
sell all or substantially all of our assets according to the
terms and conditions of the Indenture, the resulting or
acquiring corporation will be substituted for us in the
Indenture with the same effect as if it had been an original
party to the Indenture. As a result, the successor corporation
may exercise our rights and powers under the Indenture, in our
name or in its own name and we will be released from all our
liabilities and obligations under the Indenture and under the
Debt Securities (Sections 11.01(a) and (b)).
Satisfaction
and Discharge; Defeasance and Covenant Defeasance
The following discussion of satisfaction and discharge,
defeasance and covenant defeasance will be applicable to a
series of Debt Securities only if we choose to have them apply
to that series. If we do so choose, we will state that in the
applicable prospectus supplement.
Satisfaction and Discharge. The Indenture will
be satisfied and discharged if:
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we deliver to the Trustee all Debt Securities then outstanding
for cancellation; or
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all Debt Securities not delivered to the Trustee for
cancellation have become due and payable, are to become due and
payable within one year upon their stated maturity or are to be
called for redemption within one year and we deposit an amount
sufficient to pay the principal, premium, if any, and interest
to the date of maturity or redemption as applicable, or deposit
(in the case of Debt Securities that have become due and
payable), provided that in either case we have paid all other
sums payable under the Indenture.
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Defeasance and Covenant Defeasance. The
Indenture provides, if such provision is made applicable to the
Debt Securities of a series, that:
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to defease and be discharged from any and all obligations with
respect to any Debt Security of such series (except for the
obligations to register the transfer or exchange of such Debt
Security, to replace temporary or mutilated, destroyed, lost or
stolen debt securities, to maintain an office or agency in
respect of the debt securities and to hold moneys for payment in
trust) (defeasance); or
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to be released from our obligations with respect to certain
restrictive covenants that may be applicable for a particular
series; and
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the Events of Default described in the third, fourth (only with
respect to those restrictive covenants that no longer apply),
fifth and seventh bullets under Events of Default,
shall not be Events of Default under the Indenture with respect
to such series (covenant defeasance), upon the
deposit with the Trustee (or other qualifying trustee), in trust
for such purpose, of money, certain U.S. government
obligations which through the payment of principal and interest
in accordance with their terms will provide money, in an amount
sufficient to pay the principal of (and premium, if any) and
interest on such Debt Security, on the scheduled due dates.
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In the case of defeasance, the holders of such Debt Securities
are entitled to receive payments in respect of such Debt
Securities solely from such trust. Such a trust may only be
established if, among other things, we
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have delivered to the Trustee an opinion of counsel (as
specified in the Indenture) to the effect that the holders of
the Debt Securities affected thereby will not recognize income,
gain or loss for federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance or
covenant defeasance had not occurred. Such opinion of counsel,
in the case of defeasance described above, must refer to and be
based upon a ruling of the Internal Revenue Service or a change
in applicable federal income tax law occurring after the date of
the Indenture.
Modification
and Waiver
Under the Indenture, certain of our rights and obligations and
certain of the rights of Holders of the Debt Securities may be
modified or amended with the consent of the Holders of a
majority in aggregate principal amount of the outstanding Debt
Securities of each series of Debt Securities affected by the
modification or amendment. The following modifications and
amendments will not be effective against any Holder of any
outstanding Debt Security affected thereby without its consent:
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a change in the stated maturity date of any payment of principal
or interest;
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a reduction in the principal amount, in the rate of interest or
in any premium payable upon redemption;
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a reduction in the principal amount of an Original Issue
Discount Security that would be due and payable upon a
declaration of acceleration of the maturity of a Debt Security
pursuant to the Indenture;
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a change in the Place of Payment or currency in which any
payment on the Debt Securities is payable;
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an impairment of a Holders right to sue for the
enforcement of certain payments due on the Debt Securities;
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a reduction in the percentage in principal amount of outstanding
Debt Securities required to consent to a modification, waiver or
amendment of the Indenture; and
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a modification of any of the foregoing requirements or a
reduction in the percentage in principal amount of outstanding
Debt Securities required to waive compliance with certain
provisions of the Indenture or to waive certain defaults under
the Indenture (Section 10.02).
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Events of
Default
The term Event of Default when used in the Indenture
with respect to any series of Debt Securities, means any of the
following:
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failure to pay interest (including defaulted interest, if any)
on any Debt Security of that series when due, and continuance of
such default for a period of 30 days;
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failure to pay the principal of or any premium on any Debt
Security of that series when due;
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failure to make any sinking fund payment when and as due by the
terms of a Debt Security of that series, and continuance of such
default for a period of 60 days;
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default in the performance, or breach, of any covenant or
warranty of the Company in the Indenture (other than a covenant
or warranty, a default in the performance or breach of which is
elsewhere specifically dealt with or which has expressly been
included in the Indenture solely for the benefit of one or more
series of Debt Securities other than that series), and
continuance of such default or breach for a period of 60
calendar days after there has been given and actually received
by the Company a Notice of Default with respect to such default
or breach;
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any nonpayment at maturity or other default is made under any
agreement or instrument relating to any other Indebtedness of
the Company (the unpaid principal amount of which is not less
than the greater of $50 million or 7% of Consolidated
Stockholders Equity of the Company), and, in any such
case, such default (A) continues beyond any period of grace
provided with respect thereto, (B) results in such
Indebtedness being accelerated or declared due and payable (or,
in the case of nonpayment, occurs at
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the final maturity of such Indebtedness), and (C) such
Indebtedness is not discharged, or such acceleration or
declaration has not been rescinded or annulled, within a period
of 30 days after actual receipt by the Company of a Notice
of Default from the Trustee or the required Holders of such
series; provided, however, that if any such nonpayment or other
default shall be cured, waived, rescinded or annulled, then the
Event of Default by reason thereof shall be deemed not to have
occurred;
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certain events in bankruptcy, insolvency or
reorganization; or
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any other Event of Default that may be specified for the Debt
Securities of that series when that series is created. (Section
8.01(a)).
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If an Event of Default (other than the Event of Default referred
to in the sixth bullet above) for any series of Debt Securities
occurs and continues, the Trustee or the Holders of at least 25%
in aggregate principal amount of the outstanding Debt Securities
of the series may declare the entire principal of all the Debt
Securities of that series to be due and payable immediately. If
such a declaration occurs, the Holders of a majority of the
aggregate principal amount of the outstanding Debt Securities of
that series can, subject to certain conditions, rescind the
declaration. Upon the occurrence of the Event of Default
referred to in the sixth bullet above the entire principal of,
and interest and premium (if any) on, all the Debt Securities of
each series shall be due and payable immediately without any
declaration or other act on the part of the Trustee or any
Holder. (Section 8.01(b) and (c)).
The prospectus supplement relating to each series of Debt
Securities that are Original Issue Discount Securities will
describe the particular provisions that relate to the
acceleration of maturity of a portion of the principal amount of
such series when an Event of Default occurs and continues.
An Event of Default for a particular series of Debt Securities
does not necessarily constitute an event of Default for any
other series of Debt Securities issued under the Indenture. The
Indenture requires us to file an Officers Certificate with
the Trustee each fiscal year that states whether or not certain
defaults exist under the terms of the Indenture
(Section 6.05).
Other than its duties in the case of a default, a Trustee is not
obligated to exercise any of its rights or powers under the
Indenture at the request or direction of any Holders, unless the
Holders offer the Trustee indemnification satisfactory to it
(Section 9.02(e)). If such indemnification is provided,
then, subject to certain other rights of the Trustee, the
Holders of a majority in principal amount of the outstanding
Debt Securities of any series may, with respect to the Debt
Securities of that series, direct the time, method and place of:
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conducting any proceeding for any remedy available to the
Trustee; or
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exercising any trust or power conferred upon the Trustee
(Section 8.06).
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The Holder of a Debt Security of any series will have the right
to begin any proceeding with respect to the Indenture or for any
other remedy under the Indenture (including the appointment of a
receiver or trustee), only if:
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the Holder has previously given the Trustee written notice of a
continuing Event of Default with respect to the Debt Securities
of that series;
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the Holders of at least 25% in aggregate principal amount of the
outstanding Debt Securities of that series have made a written
request of, and offered satisfactory indemnification to, the
Trustee to begin such proceeding;
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the Trustee has not started such proceeding within 60 days
after receiving the request; and
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the Trustee has not received directions inconsistent with such
request from the Holders of a majority in aggregate principal
amount of the outstanding Debt Securities of that series during
those 60 days (Section 8.04).
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However, the Holder of any Debt Security will have an absolute
right to receive payment of principal of and any premium and
interest on the Debt Security when due and to institute suit to
enforce such payment (Section 8.09).
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Street
Name and Other Indirect Holders
Investors who hold securities in accounts at banks or brokers
generally will not be recognized by us as legal Holders of Debt
Securities. This is called holding in Street Name.
Instead, we would recognize only the bank or broker, or the
financial institution that the bank or broker uses to hold its
securities. These intermediary banks, brokers and other
financial institutions pass along principal, interest and other
payments on the Debt Securities, either because they agree to do
so in their customer agreements or because they are legally
required to. If you hold Debt Securities in Street
Name, you should check with your own institution to find
out:
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How it handles payments and notices;
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Whether it imposes fees or charges;
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How it would handle voting if applicable;
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Whether and how you can instruct it to send you Debt Securities
registered in your own name so you can be a direct Holder as
described below; and
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If applicable, how it would pursue rights under your Debt
Securities if there were a default or other event triggering the
need for Holders to act to protect their interests.
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Direct
Holders
Our obligations, as well as the obligations of the Trustee under
the Indenture and those of any third parties employed by us or
the Trustee under the Indenture, run only to persons who are
registered as Holders of Debt Securities issued under the
Indenture. As noted above, we do not have obligations to you if
you hold in Street Name or other indirect means,
either because you choose to hold Debt Securities in that manner
or because the Debt Securities are issued in the form of global
securities as described below. For example, once we make payment
to the registered Holder, we have no further responsibility for
the payment even if that Holder is legally required to pass the
payment along to you as a Street Name customer but
does not do so.
Book-Entry,
Delivery and Form
We have obtained the information in this section concerning DTC,
Clearstream Banking S.A., or Clearstream, and
Euroclear Bank S.A./N.V., as operator of the Euroclear System,
or Euroclear, and the book-entry system and
procedures from sources that we believe to be reliable, but we
take no responsibility for the accuracy of this information.
Unless otherwise specified in the applicable prospectus
supplement, the Debt Securities will be issued as
fully-registered global securities which will be deposited with,
or on behalf of, DTC and registered, at the request of DTC, in
the name of Cede & Co. Beneficial interests in the
global securities will be represented through book-entry
accounts of financial institutions acting on behalf of
beneficial owners as direct or indirect participants in DTC.
Investors may elect to hold their interests in the global
securities through either DTC (in the United States) or (in
Europe) through Clearstream or through Euroclear. Investors may
hold their interests in the global securities directly if they
are participants in such systems, or indirectly through
organizations that are participants in these systems. Interests
held through Clearstream and Euroclear will be recorded on
DTCs books as being held by the U.S. depositary for
each of Clearstream and Euroclear (the
U.S. Depositories), which
U.S. Depositories will, in turn, hold interests on behalf
of their participants customers securities accounts.
Unless otherwise specified in the applicable prospectus
supplement, beneficial interests in the global securities will
be held in denominations of $100,000 and multiples of $1,000 in
excess thereof. Except as set forth below, the global securities
may be transferred, in whole and not in part, only to another
nominee of DTC or to a successor of DTC or its nominee.
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Debt Securities represented by a global security can be
exchanged for definitive securities in registered form only if:
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DTC notifies us that it is unwilling or unable to continue as
depositary for that global security and we do not appoint a
successor depositary within 90 days after receiving that
notice;
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at any time DTC ceases to be a clearing agency registered under
the Exchange Act and we do not appoint a successor depositary
within 90 days after becoming aware that DTC has ceased to
be registered as a clearing agency;
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we in our sole discretion determine that that global security
will be exchangeable for definitive securities in registered
form and notify the trustee of our decision; or
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an event of default with respect to the debt securities
represented by that global security has occurred and is
continuing.
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A global security that can be exchanged as described in the
preceding sentence will be exchanged for definitive securities
issued in authorized denominations in registered form for the
same aggregate amount. The definitive securities will be
registered in the names of the owners of the beneficial
interests in the global security as directed by DTC.
We will make principal and interest payments on all Debt
Securities represented by a global security to the paying agent
which in turn will make payment to DTC or its nominee, as the
case may be, as the sole registered owner and the sole holder of
the Debt Securities represented by a global security for all
purposes under the indenture. Accordingly, we, the trustee and
any paying agent will have no responsibility or liability for:
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any aspect of DTCs records relating to, or payments made
on account of, beneficial ownership interests in a debt security
represented by a global security;
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any other aspect of the relationship between DTC and its
participants or the relationship between those participants and
the owners of beneficial interests in a global security held
through those participants; or
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the maintenance, supervision or review of any of DTCs
records relating to those beneficial ownership interests.
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DTC has advised us that its current practice is to credit
participants accounts on each payment date with payments
in amounts proportionate to their respective beneficial
interests in the principal amount of such global security as
shown on DTCs records, upon DTCs receipt of funds
and corresponding detail information. The underwriters or agents
for the debt securities represented by a global security will
initially designate the accounts to be credited. Payments by
participants to owners of beneficial interests in a global
security will be governed by standing instructions and customary
practices, as is the case with securities held for customer
accounts registered in street name, and will be the
sole responsibility of those participants. Book-entry notes may
be more difficult to pledge because of the lack of a physical
note.
DTC
So long as DTC or its nominee is the registered owner of a
global security, DTC or its nominee, as the case may be, will be
considered the sole owner and holder of the Debt Securities
represented by that global security for all purposes of the Debt
Securities. Owners of beneficial interests in the Debt
Securities will not be entitled to have Debt Securities
registered in their names, will not receive or be entitled to
receive physical delivery of the Debt Securities in definitive
form and will not be considered owners or holders of Debt
Securities under the Indenture. Accordingly, each person owning
a beneficial interest in a global security must rely on the
procedures of DTC and, if that person is not a DTC participant,
on the procedures of the participant through which that person
owns its interest, to exercise any rights of a holder of Debt
Securities. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of the
securities in certificated form. These laws may impair the
ability to transfer beneficial interests in a global security.
Beneficial owners may experience delays in receiving
distributions on their Debt Securities since
16
distributions will initially be made to DTC and must then be
transferred through the chain of intermediaries to the
beneficial owners account.
We understand that, under existing industry practices, if we
request holders to take any action, or if an owner of a
beneficial interest in a global security desires to take any
action which a holder is entitled to take under the Indenture,
then DTC would authorize the participants holding the relevant
beneficial interests to take that action and those participants
would authorize the beneficial owners owning through such
participants to take that action or would otherwise act upon the
instructions of beneficial owners owning through them.
Beneficial interests in a global security will be shown on, and
transfers of those ownership interests will be effected only
through, records maintained by DTC and its participants for that
global security. The conveyance of notices and other
communications by DTC to its participants and by its
participants to owners of beneficial interests in the Debt
Securities will be governed by arrangements among them, subject
to any statutory or regulatory requirements in effect.
DTC has advised us that it is a limited-purpose trust company
organized under the New York banking law, a banking
organization within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a clearing
corporation within the meaning of the New York Uniform
Commercial Code and a clearing agency registered
under the Exchange Act.
DTC holds the securities of its participants and facilitates the
clearance and settlement of securities transactions among its
participants in such securities through electronic book-entry
changes in accounts of its participants. The electronic
book-entry system eliminates the need for physical certificates.
DTCs participants include securities brokers and dealers,
including underwriters, banks, trust companies, clearing
corporations and certain other organizations, some of which,
and/or their
representatives, own DTC. Banks, brokers, dealers, trust
companies and others that clear through or maintain a custodial
relationship with a participant, either directly or indirectly,
also have access to DTCs book-entry system. The rules
applicable to DTC and its participants are on file with the SEC.
DTC has advised us that the above information with respect to
DTC has been provided to its participants and other members of
the financial community for informational purposes only and is
not intended to serve as a representation, warranty or contract
modification of any kind.
Clearstream
Clearstream has advised us that it is incorporated under the
laws of Luxembourg as a professional depositary. Clearstream
holds securities for its participating organizations, or
Clearstream Participants, and facilitates the
clearance and settlement of securities transactions between
Clearstream Participants through electronic book-entry changes
in accounts of Clearstream Participants, thereby eliminating the
need for physical movement of certificates. Clearstream provides
to Clearstream Participants, among other things, services for
safekeeping, administration, clearance and settlement of
internationally traded securities and securities lending and
borrowing. Clearstream interfaces with domestic securities
markets in several countries. As a professional depositary,
Clearstream is subject to regulation by the Luxembourg
Commission for the Supervision of the Financial Sector
(Commission de Surveillance du Secteur Financier). Clearstream
Participants are recognized financial institutions around the
world, including underwriters, securities brokers and dealers,
banks, trust companies, clearing corporations and certain other
organizations. Clearstreams U.S. Participants are
limited to securities brokers and dealers and banks. Indirect
access to Clearstream is also available to others, such as
banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a Clearstream
Participant either directly or indirectly.
Distributions with respect to Debt Securities held beneficially
through Clearstream will be credited to cash accounts of
Clearstream Participants in accordance with its rules and
procedures, to the extent received by the U.S. Depositary
for Clearstream.
17
Euroclear
Euroclear has advised us that it was created in 1968 to hold
securities for participants of Euroclear, or Euroclear
Participants, and to clear and settle transactions between
Euroclear Participants through simultaneous electronic
book-entry delivery against payment, thereby eliminating the
need for physical movement of certificates and any risk from
lack of simultaneous transfers of securities and cash. Euroclear
performs various other services, including securities lending
and borrowing and interacts with domestic markets in several
countries. Euroclear is operated by Euroclear Bank S.A./N.V., or
the Euroclear Operator, under contract with
Euroclear plc, a U.K. corporation. All operations are conducted
by the Euroclear Operator, and all Euroclear securities
clearance accounts and Euroclear cash accounts are accounts with
the Euroclear Operator, not Euroclear plc. Euroclear plc
establishes policy for Euroclear on behalf of Euroclear
Participants. Euroclear Participants include banks, including
central banks, securities brokers and dealers and other
professional financial intermediaries. Indirect access to
Euroclear is also available to other firms that clear through or
maintain a custodial relationship with a Euroclear Participant,
either directly or indirectly.
The Euroclear Operator is a Belgian bank. As such it is
regulated by the Belgian Banking and Finance Commission.
Securities clearance accounts and cash accounts with the
Euroclear Operator are governed by the Terms and Conditions
Governing Use of Euroclear and the related Operating Procedures
of the Euroclear System, and applicable Belgian law, which we
will refer to herein as the Terms and Conditions.
The Terms and Conditions govern transfers of securities and cash
within Euroclear, withdrawals of securities and cash from
Euroclear, and receipts of payments with respect to securities
in Euroclear. All securities in Euroclear are held on a fungible
basis without attribution of specific certificates to specific
securities clearance accounts. The Euroclear Operator acts under
the Terms and Conditions only on behalf of Euroclear
Participants, and has no record of or relationship with persons
holding through Euroclear Participants.
Distributions with respect to Debt Securities held beneficially
through Euroclear will be credited to the cash accounts of
Euroclear Participants in accordance with the Terms and
Conditions, to the extent received by the U.S. Depositary
for Euroclear.
Euroclear has further advised us that investors that acquire,
hold and transfer interests in the Debt Securities by book-entry
through accounts with the Euroclear Operator or any other
securities intermediary are subject to the laws and contractual
provisions governing their relationship with their intermediary,
as well as the laws and contractual provisions governing the
relationship between such an intermediary and each other
intermediary, if any, standing between themselves and the global
securities.
What
is a Global Security?
A global security is a special type of indirectly held Debt
Security as described above under Street
Name and Other Indirect Holders. If we choose to
issue Debt Securities in the form of global securities, the
ultimate beneficial owners can only hold the Debt Securities in
Street Name. We would do this by requiring that the
global security be registered in the name of a financial
institution we select and by requiring that the Debt Securities
included in the global security not be transferred to the name
of any other direct Holder unless the special circumstances
described below occur. The financial institution that acts as
the sole direct Holder of the global security is called the
depositary. Any person wishing to own a Debt
Security issued in the form of a global security must do so
indirectly by virtue of an account with a broker, bank or other
financial institution that in turn has an account with the
depositary. The applicable prospectus supplement will indicate
whether a series of Debt Securities will be issued only in the
form of global securities and, if so, will describe the specific
terms of the arrangement with the depositary.
Special
Investor Considerations for Global Securities
As an indirect holder, an investors rights relating to a
global security will be governed by the account rules of the
investors financial institution and of the depositary, as
well as general laws relating to securities
18
transfers. We do not recognize this type of investor as a holder
of Debt Securities and instead deal only with the depositary
that holds the global security.
An investor should be aware that if a series of Debt Securities
are issued only in the form of global securities:
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The investor cannot get Debt Securities of that series
registered in his or her own name;
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The investor cannot receive physical certificates for his or her
interest in the Debt Securities of that series;
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The investor will be a Street Name holder and must
look to his or her own bank or broker for payments on the Debt
Securities of that series and protection of his or her legal
rights relating to the Debt Securities of that series, as
described under Street Name and
Other Indirect Holders;
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The investor may not be able to sell interests in the Debt
Securities of that series to some insurance companies and other
institutions that are required by law to own their securities in
the form of physical certificates; and
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The depositarys policies will govern payments, transfers,
exchange and other matters relating to the investors
interest in the global security. We and the Trustee have no
responsibility for any aspect of the depositarys actions
or for its records of ownership interests in the global
security. We and the Trustee also do not supervise the
depositary in any way.
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Special
Situations When The Global Security Will be
Terminated
In a few special situations, a global security will terminate,
and interests in it will be exchanged for physical certificates
representing Debt Securities. After that exchange, the choice of
whether to hold Debt Securities directly or in Street
Name will be up to the investor. Investors must consult
their own bank or brokers to find out how to have their
interests in Debt Securities transferred to their own name, so
that they will be direct Holders. The rights of Street
Name investors and direct Holders in Debt Securities have
been previously described in subsections entitled
Street Name and Other Indirect
Holders and Direct Holders.
The special situations for termination of a global security are:
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When the depositary notifies us that it is unwilling, unable or
no longer qualified to continue as depositary, and we do not
appoint a successor depositary;
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When an Event of Default on the series of Debt Securities has
occurred and has not been cured; and
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At any time if we decide to terminate a global security.
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The applicable prospectus supplement may also list additional
situations for terminating a global security that would apply
only to the particular series of Debt Securities covered by the
prospectus supplement. When a global security terminates, only
the depositary is responsible for deciding the names of the
institutions that will be the initial direct Holders.
19
DESCRIPTION OF
OTHER SECURITIES
We will set forth in the applicable prospectus supplement a
description of any warrants, purchase contracts, or units that
may be offered pursuant to this prospectus.
PLAN OF
DISTRIBUTION
We may sell any combination of the securities offered pursuant
to this prospectus through agents, through underwriters or
dealers or directly to one or more purchasers, or through a
combination of these methods.
Underwriters, dealers and agents that participate in the
distribution of the securities offered pursuant to this
prospectus may be underwriters as defined in the Securities Act
of 1933 (the Securities Act) and any discounts or
commissions received by them from us and any profit on the
resale of the offered securities by them may be treated as
underwriting discounts and commissions under the Securities Act.
If a material arrangement with any underwriter, broker, dealer
or agent is entered into for the sale of the offered securities,
a prospectus supplement will be filed, if necessary, under the
Securities Act disclosing the material terms and conditions of
such arrangement. Any underwriters or agents will be identified
and their compensation (including underwriting discount) will be
described in the prospectus supplement. The prospectus
supplement will also describe other terms of the offering,
including any discounts or concessions allowed or reallowed or
paid to dealers and any securities exchanges on which the
offered securities may be listed.
The distribution of the securities offered under this prospectus
may occur from time to time in one or more transactions at a
fixed price or prices, which may be changed, at market prices
prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
If the prospectus supplement indicates, we will authorize
dealers or our agents to solicit offers by certain institutions
to purchase offered securities from us pursuant to contracts
that provide for payment and delivery on a future date. We must
approve all institutions, but they may include, among others:
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commercial and savings banks;
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insurance companies;
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pension funds;
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investment companies; and
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educational and charitable institutions.
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An institutional purchasers obligations under any contract
to purchase our securities will only be subject to the condition
that the purchase of the offered securities at the time of
delivery is allowed by the laws that govern the purchaser. The
dealers and our agents will not be responsible for the validity
or performance of these contracts.
We may have agreements with the underwriters, dealers and agents
to indemnify them against certain civil liabilities, including
liabilities under the Securities Act, or to contribute with
respect to payments which the underwriters, dealers or agents
may be required to make as a result of those certain civil
liabilities.
When we issue the securities offered by this prospectus, they
may be new securities without an established trading market. If
we sell a security offered by this prospectus to an underwriter
for public offering and sale, the underwriter may make a market
for that security, but the underwriter will not be obligated to
do so and could discontinue any market making without notice at
any time. Therefore, we cannot give any assurances to you
concerning the liquidity of any security offered by this
prospectus.
Underwriters and agents and their affiliates may be customers
of, engage in transactions with, or perform services for us or
our subsidiaries in the ordinary course of their businesses.
20
VALIDITY OF
SECURITIES
The validity of the securities described in this prospectus has
been passed upon by Calfee, Halter & Griswold LLP,
1400 KeyBank Center, 800 Superior Avenue, Cleveland, Ohio 44114.
EXPERTS
The consolidated financial statements of RPM International Inc.
appearing in RPM International Inc.s Annual Report
(Form 10-K)
for the year ended May 31, 2007 (including the schedule
therein), and RPM International Inc.s managements
assessment of the effectiveness of internal control over
financial reporting as of May 31, 2007 included therein,
have been audited by Ernst & Young LLP, independent
registered public accounting firm, as set forth in their reports
thereon included therein, and incorporated herein by reference.
Such consolidated financial statements and schedule and
managements assessment are incorporated herein by
reference in reliance upon such reports given on the authority
of such firm as experts in accounting and auditing.
The consolidated financial statements and schedule of RPM
International Inc. for the year ended May 31, 2005
appearing in RPM International Inc.s Annual Report
(Form 10-K)
for the year ended May 31, 2007 and RPM International
Inc.s managements assessment of the effectiveness of
internal control over financial reporting as of May 31,
2005 included therein, have been audited by Ciulla,
Smith & Dale, LLP, our former independent registered
public accounting firm, as set forth in their reports thereon
included therein, and incorporated herein by reference. Such
consolidated financial statements and schedule and
managements assessment are incorporated herein by
reference in reliance upon such reports given on the authority
of such firm as experts in accounting and auditing.
21
PART II
INFORMATION NOT
REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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The following is an estimate, subject to future contingencies,
of the expenses to be incurred by the registrant in connection
with the issuance and distribution of the securities being
registered:
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Per Offering(1)
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Registration fee
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$
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(2
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Legal fees and expenses
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75,000
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Trustee fees and expenses
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5,000
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Accounting fees and expenses
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145,000
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Printing and engraving fees
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100,000
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Rating agency fees
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328,750
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Miscellaneous
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36,425
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Total
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$
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700,000
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(1)
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Because an indeterminate amount of
securities is covered by this registration statement, the
expenses in connection with the issuance and distribution of the
securities are not currently determinable. The amounts shown are
estimates of expenses for a single offering of securities under
the registration statement, but do not limit the amount of
securities that may be offered.
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(2)
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Deferred in accordance with
Rules 456(b) and 457(r).
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Item 15.
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Indemnification
of Directors and Officers
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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 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 by-law,
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 directors duty of care. Specifically, this section
provides that a director of a corporation shall not be
personally liable to the
II-1
corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability
(i) for any breach of the directors 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 Registrants Amended and Restated
Certificate of Incorporation (the Certificate of
Incorporation) provides that to the full extent permitted
by the DGCL, no director of the Registrant will be personally
liable to the Registrant 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 Registrant.
Article IX of the Certificate of Incorporation provides in
part that the Registrant 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 Registrant, or is or was serving at
the request of the Registrant, 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 Registrant may maintain insurance
to cover losses incurred pursuant to liability of directors and
officers of the Registrant. The Registrant 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 Registrant.
The Registrant 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 Registrant 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.
See Exhibit Index.
(a) The undersigned registrant 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;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
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 the effective registration
statement; and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
II-2
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) of this section do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement or is
contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the 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.
(4) That, for the purpose of determining liability
under the Securities Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B
(§ 230.430B of this chapter):
(A) Each prospectus filed by the registrant pursuant
to Rule 424(b)(3) (§ 230.424(b)(3) of this
chapter) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7)
(§ 230.424(b)(2), (b)(5), or (b)(7) of this chapter)
as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii), or (x)
(§ 230.415(a)(1)(i), (vii), or (x) of this
chapter) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to the securities at that time
shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to the
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of
the registrant under the Securities Act of 1933 to any purchaser
in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the
offering prepared by or on behalf of the undersigned registrant
or used or referred to by the undersigned registrant;
II-3
(iii) The portion of any other free writing
prospectus relating to the offering containing material
information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrants
annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted
to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer,
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Cleveland, State of Ohio, on February 14, 2008.
RPM INTERNATIONAL INC.
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By:
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/s/ Frank
C. Sullivan
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Frank C. Sullivan,
President and Chief Executive Officer
POWER OF
ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, hereby constitutes and appoints Frank C.
Sullivan, Ronald A. Rice, P. Kelly Tompkins, Ernest T. Thomas,
and Edward W. Moore, or any one of them, his or her true
and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitution for him or her in his or her
name, place and stead, in any and all capacities, to sign any or
all amendments or post-effective amendments to this Registration
Statement, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto such attorneys-in-fact and
agents, or any of them, full power and authority to do and
perform each and every act and thing requisite and necessary in
connection with such matters and hereby ratifying and confirming
all that each of such attorneys-in-fact and agents or his or her
substitute or substitutes may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following
persons in the capacities indicated on the 14th day of February,
2008.
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Signature
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Title
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/s/ Frank
C. Sullivan
Frank
C. Sullivan
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President, Chief Executive Officer
(Principal Executive Officer) and a Director
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/s/ Ernest
T. Thomas
Ernest
T. Thomas
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Senior Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
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/s/ Thomas
C. Sullivan
Thomas
C. Sullivan
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Chairman of the Board of Directors
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/s/ John
P. Abizaid
John
P. Abizaid
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Director
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/s/ Bruce
A. Carbonari
Bruce
A. Carbonari
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Director
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/s/ David
A. Daberko
David
A. Daberko
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Director
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/s/ James
A. Karman
James
A. Karman
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Director
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/s/ Donald
K. Miller
Donald
K. Miller
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Director
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II-5
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Signature
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Title
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/s/ Frederick
R. Nance
Frederick
R. Nance
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Director
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/s/ William
A. Papenbrock
William
A. Papenbrock
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Director
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/s/ Charles
A. Ratner
Charles
A. Ratner
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Director
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/s/ William
B. Summers, Jr.
William
B. Summers, Jr.
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Director
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/s/ Jerry
Sue Thornton
Jerry
Sue Thornton
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Director
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/s/ Joseph
P. Viviano
Joseph
P. Viviano
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Director
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II-6
EXHIBIT INDEX
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No.
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Description
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1
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.1
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Underwriting Agreement(1)
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4
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.1
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Indenture, dated as of February 14, 2008, between the
Company and The Bank of New York Trust Company, N.A.
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4
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.2
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Form of Debt Securities(1)
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4
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.3
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Form of Warrant Agreement (1)
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4
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.4
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Form of Common Stock Warrant Certificate(1)
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4
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.5
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Form of Debt Securities Warrant Certificate(1)
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4
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.6
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Rights Agreement by and between the Company (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 Companys Registration Statement
on
Form 8-A
as filed with the Commission on May 11, 1999.
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4
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.61
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Amendment to Rights Agreement dated as of December 18, 2000
by and among the Company (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 to the Companys
Annual Report on
Form 10-K
for the fiscal year ended May 31, 2001.
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4
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.62
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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 Companys Registration Statement
on
Form S-8
(Registration
No. 333-101501),
as filed with the Commission on November 27, 2002.
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4
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.7
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Form of Specimen Certificate for Common Stock, which is
incorporated herein by reference to Exhibit 4.3 to the
Companys Registration Statement on
Form S-8
(File
No. 333-101501),
as filed with the Commission on November 27, 2002.
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5
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.1
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Form of Opinion of Calfee, Halter & Griswold LLP(2)
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5
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.2
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Form of Opinion of Harter Secrest & Emery LLP(2)
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12
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Computation of Ratio of Earnings to Fixed Charges
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23
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.1
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Consent of Calfee, Halter & Griswold LLP (included
as part of Exhibit 5.1)
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23
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.2
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Consent of Independent Registered Public Accounting
Firm Ernst & Young LLP
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23
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.3
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Consent of Ciulla, Smith & Dale, LLP
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23
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.4
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Consent of Crawford & Winiarski
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24
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Powers of Attorney (included in signature page)
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25
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Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York Trust Company, N.A., as
Trustee
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(1)
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To be filed by amendment or
incorporated by reference in connection with the offering of the
offered securities.
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(2)
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Executed opinions will be filed by
amendment or incorporated by reference in connection with the
offering of the offered securities.
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II-7