-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LAao168IJ+qAmO8FjGkTd3eX5MkiqCJU3uoxZ//PnswXfLbzvV2PVCPi/b35qnzO 79eq0yK8t+s8lLYkx494Dw== 0000950152-02-008923.txt : 20021127 0000950152-02-008923.hdr.sgml : 20021127 20021127112107 ACCESSION NUMBER: 0000950152-02-008923 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20021127 EFFECTIVENESS DATE: 20021127 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RPM INTERNATIONAL INC/DE/ CENTRAL INDEX KEY: 0000110621 STANDARD INDUSTRIAL CLASSIFICATION: PAINTS, VARNISHES, LACQUERS, ENAMELS & ALLIED PRODUCTS [2851] IRS NUMBER: 020642224 STATE OF INCORPORATION: DE FISCAL YEAR END: 0531 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-60104 FILM NUMBER: 02842447 BUSINESS ADDRESS: STREET 1: 2628 PEARL RD STREET 2: P O BOX 777 CITY: MEDINA STATE: OH ZIP: 44258 BUSINESS PHONE: 3302735090 MAIL ADDRESS: STREET 1: 2628 PEARL RD STREET 2: P O BOX 777 CITY: MEDINA STATE: OH ZIP: 44258 FORMER COMPANY: FORMER CONFORMED NAME: REPUBLIC POWDERED METALS INC DATE OF NAME CHANGE: 19711027 FORMER COMPANY: FORMER CONFORMED NAME: RPM INC/OH/ DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: RPM INTERNATIONAL INC/OH/ DATE OF NAME CHANGE: 20021015 S-8 POS 1 l97425asv8pos.txt RPM INTERNATIONAL INC. S-8 POS AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 27, 2002 REGISTRATION NO. 333-35967 REGISTRATION NO. 333-60104 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 RPM INTERNATIONAL INC. (Exact Name of Registrant as Specified in Its Charter) DELAWARE 02-0642224 (State or Other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) P.O. BOX 777 2628 PEARL ROAD MEDINA, OHIO 44258 (Address of Principal Executive Offices, Including Zip Code) ---------- RPM INTERNATIONAL INC. 1996 KEY EMPLOYEES STOCK OPTION PLAN, AS AMENDED (Full Title of the Plan) ---------- FRANK C. SULLIVAN PRESIDENT AND CHIEF EXECUTIVE OFFICER RPM INTERNATIONAL INC. P.O. BOX 777 2628 PEARL ROAD MEDINA, OHIO 44258 (330) 273-5090 (Name, Address and Telephone Number, Including Area Code, of Agent for Service) COPIES TO: P. KELLY TOMPKINS, ESQ. EDWARD W. MOORE, ESQ. SENIOR VICE PRESIDENT, GENERAL COUNSEL AND CALFEE, HALTER & GRISWOLD LLP SECRETARY 1400 MCDONALD INVESTMENT CENTER RPM INTERNATIONAL INC. 800 SUPERIOR AVENUE P.O. BOX 777 CLEVELAND, OHIO 44114-2688 2628 PEARL ROAD (216) 622-8200 MEDINA, OHIO 44258 (330) 273-5090 ---------- CALCULATION OF REGISTRATION FEE
================================ ===================== ====================== ======================= ==================== PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE - -------------------------------- --------------------- ---------------------- ----------------------- -------------------- See below(1). N/A N/A N/A N/A ================================ ===================== ====================== ======================= ====================
(1) No additional securities are to be registered, and registration fees were paid upon filing of the original Registration Statements on Form S-8 (Registration Nos. 333-35967 and 333-60104). Therefore, no further registration fee is required. The common stock, par value $0.01 per share, of RPM International Inc. (the "Common Stock") previously registered includes rights (the "Rights") to purchase shares of Common Stock under RPM International Inc.'s Rights Agreement, as amended, that, prior to the occurrence of certain events, will not be exercisable or evidenced separately from the shares of Common Stock. EXPLANATORY NOTE This Post-Effective Amendment No. 1 (this "Amendment") to those certain Registration Statements on Form S-8 (Registration Nos. 333-35967 and 333-60104, collectively the "Registration Statement") is being filed pursuant to Rule 414 under the Securities Act of 1933, as amended (the "Securities Act") by RPM International Inc., a Delaware corporation, which is the successor to the reporting obligations of RPM, Inc., an Ohio corporation, following a statutory merger effective 9:00 a.m. (Eastern Time), October 15, 2002, for the purpose of changing RPM, Inc.'s state of incorporation to Delaware. Effective on that date, RPM, Inc. became a subsidiary of RPM International Inc., a newly formed Delaware holding company. The Delaware reincorporation was approved by shareholders on October 11, 2002. The reincorporation was effected pursuant to an Agreement and Plan of Merger, dated as of August 29, 2002, by and among RPM International Inc., RPM, Inc. and RPM Merger Company, an Ohio corporation and wholly owned subsidiary of RPM International Inc. As a result of the reincorporation, RPM International Inc. became the successor issuer to RPM, Inc. under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and will succeed to RPM, Inc.'s reporting obligations thereunder. Except as modified by this Amendment, RPM International Inc., by virtue of this Amendment, expressly adopts the Registration Statement as its own registration statement for all purposes of the Securities Act and Exchange Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents of RPM International Inc. (the "Company"), previously filed with the Securities and Exchange Commission (the "Commission"), are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the fiscal year ended May 31, 2002; (b) The Company's Quarterly Report on Form 10-Q for the quarter ended August 31, 2002; (c) The Company's Current Report on Form 8-K, filed on October 15, 2002; (d) The description of the Company's Common Stock and the Rights to purchase shares of the Company's Common Stock contained in the Company's Registration Statement on Form S-8 (Registration No. 333-101501), filed with the Commission on November 27, 2002, and any amendments and reports filed for the purpose of updating that description; and II-1 (e) The Company's Registration Statement on Form 8-A, filed with the Commission on May 11, 1999, related to the Rights. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents, other than the portions of such documents which by statute, by designation in such documents or otherwise, are not deemed to be filed with the Commission or are not required to be incorporated herein by reference. Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded, for purposes of this Registration Statement, to the extent that a statement contained in this Registration Statement, or in any other subsequently filed document that also is, or is deemed to be, incorporated by reference in this Registration Statement, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Incorporated by reference. See Item 3. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the General Corporation Law of the State of Delaware (the "DGCL") sets forth the conditions and limitations governing the indemnification of officers, directors and other persons. Section 145 provides that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation or was serving at the request of the corporation in a similar capacity with another corporation or other entity, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement incurred in connection therewith if the person acted in good faith and in a manner that the person reasonably believed to be in the best interests of the corporation. With respect to a suit by or in the right of the corporation, indemnity may be provided to the foregoing persons under Section 145 on a basis similar to that set forth above, except that no indemnity may be provided in respect of any claim, issue or matter as to which such person has been adjudged to be liable to the corporation unless and to the extent that the Delaware Court of Chancery or the court in which such action, suit or proceeding was brought determines that despite the adjudication of liability, but in view II-2 of all the circumstances of the case, such person is entitled to indemnity for such expenses as the court deems proper. Moreover, Section 145 provides for mandatory indemnification of a director, officer, employee or agent of the corporation to the extent that such person has been successful in defense of any such action, suit or proceeding and provides that a corporation may pay the expenses of an officer or director in defending an action, suit or proceeding upon receipt of an undertaking to repay such amounts if it is ultimately determined that such person is not entitled to be indemnified. Section 145 establishes provisions for determining that a given person is entitled to indemnification, and also provides that the indemnification provided by or granted under Section 145 is not exclusive of any rights to indemnity or advancement of expenses to which such person may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. Section 102(b)(7) of the DGCL permits corporations to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of the director's duty of care. Specifically, this section provides that a director of a corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. Accordingly, Article VIII of the Company's Amended and Restated Certificate of Incorporation (the "Certificate of Incorporation") provides that to the full extent permitted by the DGCL, no director of the Company shall be personally liable to the Company or its stockholders for or with respect to any acts or omissions in the performance of his or her duties as a director of the Company. Article IX of the Certificate of Incorporation provides in part that the Company shall indemnify any director or officer who was or is a party or is threatened to be made a party to, or is involved in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the Company, or is or was serving at the request of the Company, as a director, officer, employee or agent of certain other entities, against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such person in connection with such action, suit or proceeding. Both the DGCL and Article IX of the Certificate of Incorporation provide that the Company may maintain insurance to cover losses incurred pursuant to liability of directors and officers of the Company. The Company has purchased a Directors and Officers Liability Insurance Policy, which insures the directors and officers against certain liabilities that might arise in connection with their respective positions with the Company. The Company has entered into Indemnification Agreements with each of its directors and officers providing for additional indemnification protection beyond that provided by the Directors and Officers Liability Insurance Policy. In the Indemnification Agreements, the Company has agreed, subject to certain exceptions, to indemnify and hold harmless the director or officer to the II-3 maximum extent then authorized or permitted by the provisions of the Certificate of Incorporation, the DGCL, or by any amendment(s) thereto. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The exhibits listed on the accompanying Exhibit Index are filed or incorporated by reference as part of this Registration Statement. ITEM 9. UNDERTAKINGS. (a) The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in this effective Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Sections 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. II-4 (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Post-Effective Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cleveland, State of Ohio, on this 27th day of November, 2002. RPM INTERNATIONAL INC. By: /s/ Frank C. Sullivan -------------------------------- Frank C. Sullivan President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below hereby authorizes and appoints Frank C. Sullivan, Ronald A. Rice, P. Kelly Tompkins, Edward W. Moore and Arthur C. Hall III and each of them, each of whom may act without joinder of the other, as his or her attorney-in-fact to sign on his or her behalf individually and in the capacity stated below any and all post-effective amendments to this Registration Statement that his or her attorney-in-fact may deem necessary or appropriate. Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities indicated on this 27th day of November, 2002. Signature Title --------- ----- /s/ Frank C. Sullivan President, Chief Executive Officer and - ------------------------------ a Director (Principal Executive Officer) Frank C. Sullivan /s/ Robert L. Matejka Vice President, Chief Financial Officer and - ------------------------------ Controller (Principal Financial and Robert L. Matejka Accounting Officer) /s/ Thomas C. Sullivan Chairman of the Board of Directors - ------------------------------ Thomas C. Sullivan /s/ Max D. Amstutz Director - ------------------------------ Max D. Amstutz II-6 Signature Title --------- ----- /s/ Edward B. Brandon Director - ------------------------------ Edward B. Brandon /s/ Bruce A. Carbonari Director - ------------------------------ Bruce A. Carbonari /s/ E. Bradley Jones Director - ------------------------------ E. Bradley Jones /s/ James A. Karman Director - ------------------------------ James A. Karman /s/ Donald K. Miller Director - ------------------------------ Donald K. Miller /s/ William A. Papenbrock Director - ------------------------------ William A. Papenbrock /s/ Albert B. Ratner Director - ------------------------------ Albert B. Ratner /s/ Jerry Sue Thornton Director - ------------------------------ Jerry Sue Thornton /s/ Joseph P. Viviano Director - ------------------------------ Joseph P. Viviano II-7 EXHIBIT INDEX EXHIBIT NUMBER EXHIBIT DESCRIPTION - -------------- ------------------- 4.1 Amended and Restated Certificate of Incorporation of the Company, which is incorporated herein by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-8 (Registration No. 333-101501), as filed with the Commission on November 27, 2002. 4.2 Amended and Restated By-Laws of the Company, which are incorporated herein by reference to Exhibit 4.2 to the Company's Registration Statement on Form S-8 (Registration No. 333-101501), as filed with the Commission on November 27, 2002. 4.3 Specimen Certificate of Common Stock, par value $0.01 per share, of the Company, which is incorporated herein by reference to Exhibit 4.3 to the Company's Registration Statement on Form S-8 (Registration No. 333-101501), as filed with the Commission on November 27, 2002. 4.4 Rights Agreement, dated as of April 28, 1999, between RPM International Inc. (as successor to RPM, Inc.) and Harris Trust and Savings Bank, which is incorporated herein by reference to Exhibit 4.1 to the Company's Registration Statement on Form 8-A, as filed with the Commission on May 11, 1999. 4.4.1 Amendment to Rights Agreement, dated as of December 18, 2000, among RPM International Inc. (as successor to RPM, Inc.), Computershare Investor Services (formerly Harris Trust and Savings Bank) and National City Bank, which is incorporated herein by reference to Exhibit 4.4.1 of the Company's Annual Report on Form 10-K for the period ended May 31, 2001. 4.4.2 Second Amendment to Rights Agreement, dated as of October 15, 2002, among RPM, Inc., National City Bank (as successor rights agent to Computershare Investor Services, formerly Harris Trust and Savings Bank) and RPM International Inc., which is incorporated herein by reference to Exhibit 4.4.2 to the Company's Registration Statement on Form S-8 (Registration No. 333-101501), as filed with the Commission on November 27, 2002. 4.5 RPM International Inc. 1996 Key Employees Stock Option Plan. (x) 4.5.1 Amendment No. 1 to RPM International Inc. 1996 Key Employees Stock Option Plan, which is incorporated herein by reference to Exhibit 10.7.1 of the Company's Annual Report on Form 10-K for the period ended May 31, E-1 1998. 4.5.2 Amendment to RPM International Inc. 1996 Key Employees Stock Option Plan, which is incorporated herein by reference to Exhibit 4.3.1 of the Company's Registration Statement on Form S-8 (Registration No. 333-60104), as filed with the Commission on May 3, 2001. 4.5.3 Amendment No. 3 to RPM International Inc. 1996 Key Employees Stock Option Plan. (x) 5.1 Opinion of Calfee, Halter & Griswold LLP as to the validity of the securities being offered. (x) 23.1 Consent of Ciulla, Smith & Dale, LLP. (x) 23.2 Consent of Calfee, Halter & Griswold LLP (included in Exhibit 5.1). 24 Power of Attorney (included on signature page). - --------------- (x) Filed herewith. E-2 EX-4.5 3 l97425aexv4w5.txt EXHIBIT 4.5 Exhibit 4.5 RPM, INC. 1996 KEY EMPLOYEES STOCK OPTION PLAN RPM, Inc. hereby adopts a stock option plan for the benefit of certain persons and subject to the terms and provisions set forth below. 1. DEFINITIONS. The following terms shall have the meanings set forth below whenever used in this instrument: (a) The word "Board" shall mean the Board of Directors of the Company. (b) The word "Code" shall mean the United States Internal Revenue Code of 1986, as amended, or successor provisions of future United States revenue laws (Title 26 of the United States Code). (c) The word "Committee" shall mean the Compensation Committee appointed by the Board. (d) The words "Common Shares" shall mean the Common Shares, without par value, of the Company. (e) The word "Company" shall mean RPM, Inc., an Ohio corporation, and any successor thereto which shall maintain this Plan. (f) The word "Disability" shall mean the Optionee's inability to engage in substantial gainful activity for the Company by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months, as determined by the Committee pursuant to written certification of such Disability from a physician acceptable to the Committee. (g) The words "Incentive Stock Option" shall mean any option which qualifies as an Incentive Stock Option under terms of Section 422 of the Code. (h) The words "Key Employee" shall mean any person who is an executive officer or other valuable managerial or other employee of either the Company or any Subsidiary. (i) The word "Optionee" shall mean any Key Employee to whom a stock option has been granted pursuant to this Plan. (j) The word "Plan" shall mean this instrument, the RPM, Inc. 1996 Key Employees Stock Option Plan, as it is originally adopted and as it may be amended hereafter. (k) The word "Subsidiary" shall mean any domestic or foreign corporation at least 50% of the common stock of which is owned directly or indirectly by the Company. (l) The words "Substantial Shareholder" shall mean any employee who owns directly and through attribution more than 10% of the total combined voting power of all classes of stock of either the Company or any Subsidiary. Ownership shall be determined in accordance with Section 424(d) of the Code and lawful applicable regulations. 2. PURPOSE OF THE PLAN. The purpose of the Plan is to provide Key Employees of the Company and its Subsidiaries with greater incentive to serve and promote the interests of the Company and its shareholders. The premise of the Plan is that, if such persons acquire a proprietary interest in the business of the Company or increase such proprietary interest as they may already hold, then the incentive of such persons to work toward the Company's continued success will be commensurately increased. Accordingly, the Company will, from time to time during the effective period of the Plan, grant to such Key Employees as may be selected to participate in the Plan options to purchase Common Shares on the terms and subject to the conditions set forth in the Plan. Key Employees may be granted either Incentive Stock Options or nonqualified stock options. 3. EFFECTIVE DATE OF THE PLAN. The Plan shall become effective on August 15, 1996 subject to approval by holders of a majority of the outstanding shares of voting capital stock of the Company entitled to vote thereon represented in person or by proxy at a meeting of shareholders. In the event that such shareholder approval has not occurred on or before August 15, 1997, the Plan and any options granted hereunder shall be null and void. If, however, the Plan is so approved, subject to the provisions of Section 8, no further shareholder approval shall be required with respect to the granting of any options pursuant to the Plan. 4. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the Committee. The Committee shall consist of no fewer than three (3) members, who shall be designated by and be members of the Board. Each member of the Committee shall be a "disinterested person" within the meaning of Rule 16b-3 promulgated under the Securities Exchange Act of 1934 or any amendment of or successor to such Rule as may be in effect from time to time and an "outside director" within the meaning of Section 162(m) of the Code or any amendment of or successor to such provision as may be in effect from time to time. A majority of the Committee shall constitute a quorum, and the acts of a majority of the members present at any meeting at which a quorum is present, or acts approved in writing by all of the members, shall be acts of the Committee. Subject to the terms and conditions of the Plan, the Committee shall have full and final authority in its absolute discretion: (a) To select the Key Employees to whom options will be granted; (b) To determine the number of Common Shares subject to any option; (c) To determine the time or times when options will be granted; (d) To determine the option price of Common Shares subject to an option; (e) To determine the time or times when each option may be exercised and the duration of the exercise period; 2 (f) To determine at the time of grant of an option whether and to what extent such option is an Incentive Stock Option under Section 422 of the Code and regulations thereunder as the same or any successor statute or regulations may at the time be in effect; (g) To determine whether stock appreciation rights shall be made part of any option grant pursuant to Section 9 hereof, the method of valuing the stock appreciation rights and whether the stock appreciation rights may be exercised in lieu of or in addition to the related option; (h) To prescribe the form of the option agreements governing the options which are granted under the Plan and to set the provisions of such option agreements as the Committee may deem necessary or desirable provided such provisions are not contrary to the terms and conditions of either the Plan or, where the option is an Incentive Stock Option, Section 422 of the Code and regulations thereunder as the same or any successor statute or regulations may at the time be in effect; (i) To adopt, amend and rescind such rules and regulations as, in the Committee's opinion, may be advisable in the administration of the Plan; and (j) To construe and interpret the Plan, the rules and regulations and the instruments evidencing options granted under the Plan and to make all other determinations deemed necessary or advisable for the administration of the Plan. Any decision made or action taken by the Committee in connection with the administration, interpretation, and implementation of the Plan and of its rules and regulations, shall, to the extent permitted by law, be conclusive and binding upon all Optionees under the Plan and upon any person claiming under or through such an Optionee. Neither the Committee nor any of its members shall be liable for any act taken by the Committee pursuant to the Plan. No member of the Committee shall be liable for the act of any other member. 5. PERSONS ELIGIBLE FOR OPTIONS. Subject to the restrictions herein contained, options may be granted from time to time in the discretion of the Committee only to such Key Employees, as designated by the Committee, whose initiative and efforts contribute or may be expected to contribute to the continued growth and future success of the Company and/or its Subsidiaries. Notwithstanding the preceding sentence, a Key Employee who renounces in writing any right he or she may have to receive stock options under the Plan shall not be eligible to receive any stock options under the Plan. No option shall be granted to any Key Employee during any period of time when he or she is on leave of absence. The Committee may grant more than one option, with or without stock appreciation rights, to the same Key Employee. 6. SHARES SUBJECT TO THE PLAN. Subject to the provisions of Section 9 concerning payment for stock appreciation rights in Common Shares and subject to the provisions of the next succeeding paragraph of this Section 6, the aggregate number of Common Shares for which options may be granted under the Plan shall be Three Million Six Hundred Thousand (3,600,000) Common Shares. The maximum number of Common Shares for which options may be granted under the Plan to any one person shall be Five Hundred Thousand (500,000) Common Shares. 3 Either treasury or authorized and unissued Common Shares, or both, in such amounts, within the maximum limits of the Plan, as the Committee shall from time to time determine, may be so issued. All Common Shares which are the subject of any lapsed, expired or terminated options shall not thereafter be available for reoffering under the Plan. If an option granted under this Plan is exercised pursuant to the terms and conditions determined by the Committee under Subsection 7(d), any Common Shares which are the subject thereof shall not thereafter be available for reoffering under the Plan to any Key Employee. If a stock appreciation right is granted in conjunction with an option pursuant to Section 9, and if the option agreement with the Optionee provides that exercise of the stock appreciation right shall be in lieu of exercise of the options, and the stock appreciation right is thereafter exercised in whole or in part, then the option or the portion thereof with respect to which the stock appreciation right was exercised shall be deemed to have been exercised and shall not thereafter be available for reoffering under the Plan. In the event that subsequent to the date of effectiveness of the Plan, the outstanding Common Shares are, as a result of a stock split, stock dividend, combination or exchange of shares, exchange for other securities, reclassification, reorganization, redesignation, merger, consolidation, recapitalization, spin-off, split-off, split-up or other such change (including, without limitation, any transaction described in Section 424(a) of the Code) or a special dividend or other distribution to the Company's shareholders, increased or decreased or changed into or exchanged for a different number or kind of shares of stock or other securities of the Company, then (i) there shall automatically be substituted for each Common Share subject to an unexercised option granted under the Plan and each Common Share available for additional grants of options under the Plan the number and kind of shares of stock or other securities into which each outstanding Common Share shall be exchanged, (ii) the option price per Common Share or unit of securities shall be increased or decreased proportionately so that the aggregate purchase price for the securities subject to the option shall remain the same as immediately prior to such event, and (iii) the Committee shall make such other adjustments to the securities subject to options, the provisions of the Plan, and option agreements as may be appropriate or equitable, in order to prevent dilution or enlargement of option rights and in compliance with the provisions of Section 424(a) of the Code to the extent applicable and any such adjustment shall be final, binding and conclusive as to each Optionee. Any such adjustment may, in the discretion of the Committee, provide for the elimination of fractional shares. 7. OPTION PROVISIONS. (a) Option Price. The option price per Common Share which is the subject of an Incentive Stock Option under the Plan shall be determined by the Committee at the time of grant but shall not be less than one hundred percent (100%) of the fair market value of a Common Share at the close of business on the date the Incentive Stock Option is granted; provided, however, that if a Key Employee to whom an Incentive Stock Option is granted is at the time of the grant a Substantial Shareholder, the option price per Common Share shall be determined by the Committee but shall never be less than one hundred ten percent (110%) of the fair market value of a Common Share on the date the option is granted. The option price per Common Share under each option granted pursuant to the Plan which is not an Incentive Stock Option shall be determined by the Committee at the time of grant, and may be above or below the fair market value of a Common Share on the date the option is granted. Such fair market value shall be 4 determined in accordance with procedures to be established by the Committee. The date on which the Committee approves the granting of an option shall be deemed for all purposes hereunder the date on which the option is granted. (b) Period of Option. The Committee shall determine when each option is to expire but no option shall be exercisable after ten (10) years have elapsed from the date upon which the option is granted. Each option shall be subject to earlier termination as provided in Subsection 7(e) hereunder. (c) Limitation on Exercise and Transfer of Option. Except as otherwise provided in the event of an Optionee's death, only the Optionee may exercise an option, provided that a guardian or other legal representative who has been duly appointed for such Optionee may exercise an option on behalf of the Optionee. No option granted hereunder shall be transferable other than (i) by the Last Will and Testament of the Optionee or, if the Optionee dies intestate, by the applicable laws of descent and distribution, or (ii) to the extent approved by the Committee, pursuant to a qualified domestic relations order as defined by the Code or the rules thereunder. No option granted hereunder may be pledged or hypothecated, nor shall any such option be subject to execution, attachment or similar process. (d) Conditions Governing Exercise of Option. The Committee may, in its absolute discretion, either require that, prior to the exercise of any option granted hereunder, the Optionee shall have been an employee for a specified period of time after the date such option was granted, or make any option granted hereunder immediately exercisable. Each option shall be subject to such additional restrictions or conditions with respect to the right to exercise and the time and method of exercise as shall be prescribed by the Committee. Upon satisfaction of any such conditions, the option may be exercised in whole or in part at any time during the option period, but this right of exercise shall be limited to whole shares, unless the Committee shall otherwise provide. Options shall be exercised by the Optionee (i) giving written notice to the Secretary of the Company at its principal office of the Optionee's exercise of the option and the number of shares with respect to which the option is being exercised, accompanied by full payment of the purchase price either in cash or, with the consent of the Committee, in whole or in part in Common Shares having a fair market value on the date the option is exercised equal to that portion of the purchase price for which payment in cash is not made, and (ii) making appropriate arrangements with the Company with respect to income tax withholding, as required, which arrangements may include, in lieu of other withholding arrangements, (a) the Company withholding from issuance to the Optionee such number of Common Shares otherwise issuable upon exercise of the option as the Company and the Optionee may agree; provided that such Optionee, if subject to Section 16 of the Securities Exchange Act of 1934 or any successor provision, has had on file with the Committee, for at least six (6) months prior thereto, an effective standing election to satisfy said Optionee's tax withholding obligations in such a fashion, which election form by its terms shall not be revocable or amendable for at least six (6) months, or (b) with the consent of the Committee, the Optionee's delivery to the Company of Common Shares having a fair market value on the date the option is exercised equal to that portion of the withholding obligation for which payment in cash is not made. Such notice shall be deemed delivered when deposited in the mails. Notwithstanding anything in the foregoing to the contrary, in the event of a "change in control" the Committee shall have the authority and power: (i) to cause all outstanding options to be immediately exercisable notwithstanding any 5 vesting limitation otherwise previously imposed on such options; and (ii) to accelerate the termination date of all such options. Thereafter, upon such determination, an Optionee may exercise any and all outstanding options (in whole or in part), whether or not such options are by their terms fully exercisable at such time, and the Committee may authorize the acceptance of the surrender of the right to exercise such option or any portion thereof, but in no event after the expiration of the term of the option. The term "change in control" shall include, but not be limited to: (i) the first purchase of shares pursuant to a tender offer or exchange (other than a tender offer or exchange by the Company) for all or part of the Company's Common Shares or of any class or any securities convertible into such Common Shares; (ii) the receipt by the Company of a Schedule 13D or other advice indicating that a person is the "beneficial owner" (as that term is defined in Rule 13d-3 under the Securities Exchange Act of 1934) of twenty percent (20%) or more of the Company's Common Shares calculated as provided in paragraph (d) of said Rule 13d-3; (iii) the date of approval by shareholders of the Company of an agreement providing for any consolidation or merger of the Company in which the Company will not be the continuing or surviving corporation or pursuant to which capital stock, or any class or any securities convertible into such capital stock, of the Company would be converted into cash, securities, or other property, other than a merger of the Company in which the holders of common stock of all classes of the Company immediately prior to the merger would have the same proportion of ownership of common stock of the surviving corporation immediately after the merger; (iv) the date of the approval by shareholders of the Company of any sale, lease, exchange, or other transfer (in one transaction or a series of related transactions) of all or substantially all the assets of the Company; (v) the adoption of any plan or proposal for the liquidation (but not a partial liquidation) or dissolution of the Company; or (vi) such other event as the Committee shall, in its sole and absolute discretion, deem to be a "change in control." The manner of application and interpretation of the foregoing provisions shall be determined by the Committee in its sole and absolute discretion. (e) Termination of Employment, Etc. If an Optionee ceases to be an employee of the Company or its Subsidiaries, his or her option shall, unless otherwise provided for by an action of the Committee or in the option agreement between the Optionee and the Company, terminate on the date he or she ceases to be an employee and neither he nor she nor any other person shall have any rights after the date he or she ceases to be an employee to exercise all or any part of the option. An Optionee's employment shall not be deemed to have terminated while he or she is on a temporary military, sick or other bona fide leave of absence from the Company or a Subsidiary approved in writing by the Company, such as a leave of absence as is described in Section 1.421-7(h) of the Federal Income Tax Regulations or any lawful successor regulations thereto; provided, however, that the Committee may impose such terms and conditions with respect to such leaves as it deems proper as are consistent with such regulations. If the stock option is an Incentive Stock Option, no option agreement shall: (i) permit any Optionee to exercise any Incentive Stock Option more than three (3) months after the date the Optionee ceased to be an employee of the Company and all Subsidiaries (but not beyond the original term of the option) if the reason for the Optionee's cessation as an employee was other than his or her death or his or her Disability; or 6 (ii) permit any Optionee to exercise any Incentive Stock Option more than one (1) year after the date the Optionee ceased to be an employee of the Company and all Subsidiaries (but not beyond the original term of the option) if the reason for the Optionee's cessation as an employee was the Optionee's Disability; or (iii) permit any person to exercise any Incentive Stock Option more than one (1) year after the date the Optionee ceased to be an employee of the Company and all Subsidiaries (but not beyond the original term of the option) if either (A) the reason for the Optionee's cessation as an employee was his or her death or (B) the Optionee died within three (3) months after ceasing to be an employee of the Company and all Subsidiaries. If any option is by the terms of the option agreement exercisable following the Optionee's death, then such option shall be exercisable by the Optionee's estate, or the person designated in the Optionee's Last Will and Testament, or the person to whom the option was transferred by the applicable laws of descent and distribution. (f) Limitations on Grant of Incentive Stock Options. During the calendar year in which any Incentive Stock Options granted by the Company or any Subsidiary first become exercisable by any Optionee, the aggregate fair market value of the Common Shares which are subject to such Incentive Stock Options (determined as of the date the Incentive Stock Options were granted) shall not exceed the sum of One Hundred Thousand Dollars ($100,000.00). Options which are not designated as Incentive Stock Options shall not be subject to the limitation described in the preceding sentence and shall not be counted when applying such limitation. (g) Prohibition of Alternative Options. It is intended that Key Employees may be granted, simultaneously or from time to time, Incentive Stock Options or other stock options, but no Key Employees shall be granted alternative rights in Incentive Stock Options and other stock options so as to prevent options granted as Incentive Stock Options under the Plan from qualifying as such within the meaning of Section 422 of the Code. (h) Waiver by Committee of Conditions Governing Exercise of Option. The Committee may, in its sole discretion, waive any restrictions or conditions set forth in an option agreement concerning an Optionee's right to exercise any option and/or the time and method of exercise. 8. AMENDMENTS TO THE PLAN. The Committee is authorized to interpret the Plan and from time to time adopt any rules and regulations for carrying out the Plan that it may deem advisable. Subject to the approval of the Board, the Committee may at any time amend, modify, suspend or terminate the Plan. In no event, however, without the approval of the Company's shareholders, shall any action of the Committee or the Board result in: (a) Amending, modifying or altering the eligibility requirements provided in Section 5 hereof; 7 (b) Increasing or decreasing, except as provided in Section 6 hereof, the maximum number of shares for which options may be granted; (c) Decreasing the minimum option price per share at which certain options may be granted under the Plan, as provided in Section 7(a) hereof; (d) Extending either the maximum period during which an option is exercisable as provided in Section 7(b) hereof or the date on which the Plan shall terminate as provided in Section 12 hereof; (e) Changing the requirements relating to the Committee; or (f) Making any other change, without the Optionee's consent, which would cause any option granted under the Plan as an Incentive Stock Option not to qualify as an Incentive Stock Option within the meaning of Section 422 of the Code; except as necessary to conform the Plan and the option agreements to changes in the Code or other governing law. No option may be granted during any suspension of this Plan or after this Plan has terminated and no amendment, suspension or termination shall, without the Optionee's consent, alter or impair any of the rights or obligations under an option theretofore granted to such Optionee under this Plan. 9. STOCK APPRECIATION RIGHTS. The Committee may provide, at the time of the grant of a stock option and upon such terms and conditions as it deems appropriate, that an Optionee shall have the right with respect to all or a portion of the options granted to him or her to elect to surrender such options in exchange for the consideration set forth in this Section 9 in lieu of exercising such options. Alternatively, the Committee may provide, at the time of the grant of a stock option and upon such terms and conditions as it deems appropriate, that an Optionee shall have the right with respect to all or a portion of the options granted to him or her to receive the consideration set forth in this Section 9 upon exercising such options in addition to any Common Shares purchased upon exercise thereof. Stock appreciation rights must be specifically granted by the Committee; provided, however, the Committee shall have no authority to grant stock appreciation rights except in connection with the grant of a stock option pursuant to the Plan, and no Optionee shall be entitled to such rights solely as a result of the grant of an option to him or her. Stock appreciation rights, if granted, may be exercised either with respect to all or a portion of the option to which they relate. Stock appreciation rights shall not be transferable separate from the option with respect to which they were granted and shall be subject to all of the restrictions on transfer applicable to the said options. Stock appreciation rights shall be exercisable only at such times and by such persons as are specified in the option agreement governing the stock option with respect to which the stock appreciation rights were granted. A stock appreciation right shall provide that an Optionee shall have the right to receive a percentage, not greater than One Hundred Percent (100%), of the excess over the option price, if any, of the fair market value of the Common Shares covered by the option, as determined by the Committee as of the date of exercise of the stock appreciation right, in the manner provided for herein. Such amount shall be payable in one or more of the following manners, as shall be determined by the Committee: 8 (a) in cash; (b) in Common Shares having a fair market value equal to such amount; or (c) in a combination of cash and Common Shares. Any payment made pursuant to this Section 9, whether in cash or in Common Shares, shall thereby reduce the number of shares available for the grant of options under this Plan. In no event may any Optionee exercise any stock appreciation rights granted hereunder unless such Optionee is then permitted to exercise the option or the portion thereof with respect to which such stock appreciation rights relate. If the option agreement with the Optionee provides that exercise of the stock appreciation right shall be in lieu of exercise of the option, then (i) upon the exercise of any stock appreciation rights, the option or that portion thereof to which the stock appreciation rights relate shall be cancelled, and (ii) upon the exercise of the option or that portion thereof to which the stock appreciation rights relate, the stock appreciation rights shall be cancelled, and the option agreement governing such option shall be deemed amended as appropriate without any further action by the Committee or the Optionee. If the option agreement with the Optionee provides that exercise of the stock appreciation right shall be in addition to exercise of the option, then (i) upon the exercise of any stock appreciation rights, the option or that portion thereof to which the stock appreciation rights relate shall be deemed exercised, and (ii) upon the exercise of the option, the stock appreciation rights corresponding thereto shall be deemed exercised to the extent the option is exercised. The terms of any stock appreciation rights granted hereunder shall be incorporated into the option agreement which governs the option with respect to which the stock appreciation rights are granted, and shall be on such terms as the Committee shall prescribe which are not inconsistent with this Plan. The granting of an option or stock appreciation right shall impose no obligation upon the Optionee to exercise such option or right. The Company's obligation to satisfy stock appreciation rights shall not be funded or secured in any manner. 10. INVESTMENT REPRESENTATION, APPROVALS AND LISTING. The Committee may condition its grant of any option hereunder upon receipt of an investment representation from the Optionee which shall be substantially similar to the following: "Optionee agrees that any Common Shares of RPM, Inc. which Optionee may acquire by virtue of the exercise of this option shall be acquired for investment purposes only and not with a view to distribution or resale; provided, however, that this restriction shall become inoperative in the event the Common Shares of RPM, Inc. which are subject to this option shall be registered under the Securities Act of 1933, as amended, or in the event RPM, Inc. is otherwise satisfied that the offer or sale of the Common Shares of RPM, Inc. which are subject to this option may lawfully be made without registration under the Securities Act of 1933, as amended." The Company shall not be required to issue any certificates for Common Shares upon the exercise of an option or a stock appreciation right granted under the Plan prior to (i) obtaining any approval from any governmental agency which the Committee shall, in its sole discretion, determine to be necessary or advisable, (ii) the admission of such Common Shares to listing on 9 any national securities exchange on which the Common Shares may be listed, (iii) completion of any registration or other qualification of the Common Shares under any state or federal law or ruling or regulations of any governmental body which the Committee shall, in its sole discretion, determine to be necessary or advisable, or the determination by the Committee, in its sole discretion, that any registration or other qualification of the Common Shares is not necessary or advisable and (iv) obtaining an investment representation from the Optionee in the form set forth above or in such other form as the Committee, in its sole discretion, shall determine to be adequate. 11. GENERAL PROVISIONS. (a) Option Agreements Need Not Be Identical. The form and substance of option agreements and grants of stock appreciation rights, whether granted at the same or different times, need not be identical. (b) No Right To Be Employed, Etc. Nothing in the Plan or in any option agreement shall confer upon any Optionee any right to continue as an employee of the Company or a Subsidiary, or to serve as a member of the Board, or to be entitled to receive any remuneration or benefits not set forth in the Plan or such option agreement, or to interfere with or limit either the right of the Company or a Subsidiary to terminate the Optionee's employment at any time or the right of the shareholders of the Company to remove him or her as a member of the Board, with or without cause. (c) Optionee Does Not Have Rights Of Shareholder. Nothing contained in the Plan or in any option agreement shall be construed as entitling any Optionee to any rights of a shareholder as a result of the grant of an option until such time as Common Shares are actually issued to such Optionee pursuant to the exercise of an option or stock appreciation right. (d) Successors In Interest. The Plan shall be binding upon the successors and assigns of the Company. (e) No Liability Upon Distribution Of Shares. The liability of the Company under the Plan and any distribution of Common Shares made hereunder is limited to the obligations set forth herein with respect to such distribution and no term or provision of the Plan shall be construed to impose any liability on the Company or the Committee in favor of any person with respect to any loss, cost or expense which the person may incur in connection with or arising out of any transaction in connection with the Plan, including, but not limited to, any liability to any Federal, state, or local tax authority and/or any securities regulatory authority. (f) Taxes. Appropriate provisions shall be made for all taxes required to be withheld and/or paid in connection with the options or the exercise thereof, and the transfer of Common Shares pursuant thereto, under the applicable laws or other regulations of any governmental authority, whether Federal, state or local and whether domestic or foreign. (g) Use Of Proceeds. The cash proceeds received by the Company from the issuance of Common Shares pursuant to the Plan will be used for general corporate purposes, or in such other manner as the Board deems appropriate. 10 (h) Expenses. The expenses of administering the Plan shall be borne by the Company. (i) Captions. The captions and section numbers appearing in the Plan are inserted only as a matter of convenience. They do not define, limit, construe or describe the scope or intent of the provisions of the Plan. (j) Number. The use of the singular or plural herein shall not be restrictive as to number and shall be interpreted in all cases as the context may require. (k) Gender. The use of the feminine, masculine or neuter pronoun shall not be restrictive as to gender and shall be interpreted in all cases as the context may require. 12. TERMINATION OF THE PLAN. The Plan shall terminate on August 15, 2006, and thereafter no options shall be granted under the Plan. All options outstanding at the time of termination of the Plan shall continue in full force and effect according to the terms of the option agreements governing such options and the terms and conditions of the Plan. 13. GOVERNING LAW. The Plan shall be governed by and construed in accordance with the laws of the State of Ohio and any applicable federal law. 14. VENUE. The venue of any claim brought hereunder by a Key Employee shall be Cleveland, Ohio. 15. CHANGES IN GOVERNING RULES AND REGULATIONS. All references herein to the Code or sections thereof, or to rules and regulations of the Department of Treasury or of the Securities and Exchange Commission, shall mean and include the Code sections thereof and such rules and regulations as are now in effect or as they may be subsequently amended, modified, substituted or superseded. 11 EX-4.5.3 4 l97425aexv4w5w3.txt EXHIBIT 4.5.3 EXHIBIT 4.5.3 AMENDMENT NO. 3 TO THE RPM, INC. 1996 KEY EMPLOYEES STOCK OPTION PLAN ---------------------------------------------- THIS AMENDMENT NO. 3 (the "Amendment") to the RPM, Inc. 1996 Key Employees Stock Option Plan (hereinafter known as the "Plan") is executed by RPM, Inc. (hereinafter known as the "Company") and acknowledged by RPM International Inc. (hereinafter known as the "Successor Company"), as of the dates set forth below. WITNESSETH: WHEREAS, the Company maintains the Plan for the benefit of certain of its employees and certain employees of affiliated companies; and WHEREAS, the Company has agreed to assign, and the Successor Company has agreed to assume, all of the powers, authorities, duties, responsibilities and obligations of the Company with respect to the Plan in accordance with an Agreement and Plan of Merger, dated August 29, 2002 (the "Merger Agreement"); and WHEREAS, it is the desire of the Company to amend the Plan in order to reflect the reincorporation of the Company, the assumption of the Plan by the Successor Company, and the new name of the Plan, all of which will become effective, unless otherwise indicated, as of the effective time of the reincorporation of the Company, which shall be 9:00 a.m. on October 15, 2002 (the "Effective Time"); and WHEREAS, immediately following the Effective Time, the Successor and the Company will enter into an agreement (the "Reorganization Agreement"), pursuant to which agreement the Company will transfer the stock ownership of various of its operating companies to Successor Company. WHEREAS, the Company reserved the right, pursuant to Section 8 of the Plan, for the Committee to make certain amendments thereto, subject to the approval of the Board of Directors; and WHEREAS, the Company reserved the right, under Section 6 of the Plan, to automatically convert Common Shares of the Company and for the Committee to make such other adjustments to the securities, the Plan or the Stock Option Agreements as may be appropriate or equitable, in the event of a reorganization; NOW, THEREFORE, pursuant to Sections 6 and 8 of the Plan, the Committee hereby amends the Plan, effective as of the Effective Time, unless indicated otherwise, as follows: 1. The name of the Plan is hereby changed to the "RPM International Inc. 1996 Key Employees Stock Option Plan." 2. With the exception of any references specifically set forth in this Amendment, including, without limitation, the definition of "Merger Agreement" and "Reorganization Agreement," the Plan is hereby amended by the deletion of each reference to the term "RPM, Inc." as a corporate entity, including but not limited to, the definition of the term "Company" in Section 1(e), and the substitution in lieu thereof of the term "RPM International Inc." as the corporate entity. 3. The Plan is hereby amended by the deletion of each reference to the term "RPM, Inc." as the sponsor of the Plan, including but not limited to, the definition of the term "Plan" in Section 1(j), and the substitution in lieu thereof of the term "RPM International Inc." as the sponsor of the Plan. 2 4. With the exception of any references specifically set forth in this Amendment, including, without limitation, the definition of "Merger Agreement" and "Reorganization Agreement," the Plan is hereby amended by the deletion of each reference to RPM, Inc. as an Ohio corporation in every instance that it appears, including but not limited to, the definition of the term "Company" in Section 1(e), and the substitution in lieu thereof of the reference to RPM International Inc. as a Delaware corporation. 5. The Plan is hereby amended by the deletion of each reference to the term "RPM, Inc." as the issuer of shares of Common Stock, and the substitution in lieu thereof of the term "RPM International Inc." as the issuer of shares. 6. Section 1(d) of the Plan is hereby amended by the deletion of said section in its entirety and the substitution in lieu thereof of a new Section 1(d) to read as follows: "(d) The words `Common Stock' shall mean the shares of Common Stock, par value $.01 per share, of the Company." 7. Effective immediately prior to the Effective Time, Section 1 of the Plan is hereby amended by the addition of a new Section 1(m) to read as follows: "(m) The words `Merger Agreement' shall mean the Agreement and Plan of Merger, dated as of August 29, 2002, by and among RPM International Inc., RPM, Inc. and RPM Merger Company, an Ohio corporation, as it may be amended, supplemented or replaced from time to time." 8. Effective immediately prior to the Effective Time, Section 1 of the Plan is hereby amended by the addition of a new Section 1(n) to read as follows: "(n) The words `Reorganization Agreement' shall mean the Reorganization Agreement, effective as of October 15, 2002, by and between RPM International Inc. and RPM, Inc., as it may be amended, supplemented or replaced from time to time." 9. Effective immediately prior to the Effective Time, Section 7(d) of the Plan is hereby amended by the addition of a new sentence to the end of said section to read as follows: 3 "Notwithstanding the foregoing provisions of this Section, a "change in control" shall not be deemed to have occurred as a result of (i) the execution of the Merger Agreement or the Reorganization Agreement; (ii) the assignment by the Company to the Successor Company and the assumption by the Successor Company of all of the powers, authorities, duties, responsibilities and obligations of the Company with respect to the Plan; or (iii) the consummation of any other transaction contemplated in the Merger Agreement or the Reorganization Agreement." 10. The Stock Option Agreements previously entered into by and between the Company and the Optionees are hereby amended so that (i) the Successor Company shall be deemed to have entered into such Stock Option Agreements, rather than the Company, (ii) any and all outstanding options granted under such Stock Option Agreements shall be deemed to have granted shares of Common Stock, par value $.01 per share, of the Successor Company, rather than Common Shares, without par value, of the Company and (iii) such Stock Option Agreements conform in all other respects necessary to the purpose and intent of this Amendment No. 3. [Signature Page Follows] 4 IN WITNESS WHEREOF, RPM, Inc., by officers duly authorized by the Committee, has caused this Amendment to the RPM, Inc. 1996 Key Employees Stock Option Plan to be signed this 14th day of October, 2002. RPM, INC. By: /s/ P. Kelly Tompkins ------------------------------------------ P. Kelly Tompkins, Secretary The Successor Company hereby expressly acknowledges its assumption of all of the powers, authorities, duties, responsibilities and obligations of the Company with respect to the Plan as of the Effective Time. RPM INTERNATIONAL INC. By: /s/ Keith R. Smiley ------------------------------------------ Keith R. Smiley, Treasurer and Assistant Secretary 5 EX-5.1 5 l97425aexv5w1.txt EXHIBIT 5.1 EXHIBIT 5.1 [Letterhead of Calfee, Halter & Griswold LLP] November 27, 2002 RPM International Inc. 2628 Pearl Road P.O. Box 777 Medina, Ohio 44258 We are familiar with the proceedings taken and proposed to be taken by RPM International Inc., a Delaware corporation (the "Company"), with respect to shares of Common Stock, par value $0.01 per share (the "Shares"), of the Company to be offered and sold from time to time pursuant to the Company's 1996 Key Employees Stock Option Plan, as amended (the "Plan"), which Shares were registered under the Securities Act of 1933, as amended (the "Securities Act"), by RPM, Inc., an Ohio corporation. In connection with a merger transaction for the purpose of changing RPM, Inc.'s state of incorporation to Delaware, the Company became the successor issuer to RPM, Inc. under the Securities Exchange Act of 1934, as amended, and pursuant to Rule 414 under the Securities Act, has expressly adopted the prior registration statements filed with the Securities and Exchange Commission (the "Commission") to register the Shares. As counsel for the Company, we have assisted in preparing a Post-Effective Amendment to the Registration Statements on Form S-8 (the "Registration Statement") to be filed by the Company with the Securities and Exchange Commission in connection with the registration of the Shares under the Securities Act. In this connection, we have examined such documents, records and matters of law as we have deemed necessary or advisable to render the opinion contained herein. Based upon our examination and inquiries, we are of the opinion that the Shares are duly authorized and, when offered and sold pursuant to the terms and conditions of the Plan, will be validly issued, fully paid and nonassessable. Our opinion is limited solely to the laws of the State of Delaware. We consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. We do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act. Very truly yours, /s/ Calfee, Halter & Griswold LLP CALFEE, HALTER & GRISWOLD LLP EX-23.1 6 l97425aexv23w1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in this Post-Effective Amendment No. 1 to the Registration Statements on Form S-8 pertaining to the RPM International Inc. 1996 Key Employees Stock Option Plan, as amended, of our report dated July 3, 2002 with respect to the consolidated financial statements of RPM, Inc. included in the Annual Report on Form 10-K for the year ended May 31, 2002 and of our report on the Financial Statement Schedule which appears in such Annual Report on Form 10-K. /s/ Ciulla, Smith & Dale, LLP CIULLA, SMITH & DALE, LLP Cleveland, Ohio November 27, 2002 -----END PRIVACY-ENHANCED MESSAGE-----