EXHIBIT 10.1
EXECUTION COPY
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RPM UNITED KINGDOM G.P.
(a U.K. general partnership)
by
RPM CANADA (an Ontario partnership) and
RPM CANADA INVESTMENT COMPANY (a Nova Scotia unlimited company)
as its general partners, and in its name
and as fully and unconditionally guaranteed by
RPM INTERNATIONAL INC.
(a Delaware corporation)
$150,000,000
6.70% Senior Notes due 2015
PURCHASE AGREEMENT
Dated: October 19, 2005
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TABLE OF CONTENTS
Page
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SECTION 1. Representations and Warranties.................................... 2
(a) Representations and Warranties by the Partnership and
the Guarantor............................................... 2
(i) Offering Circular.................................. 2
(ii) Incorporated Documents............................. 3
(iii) Independent Accountants............................ 3
(iv) Financial Statements............................... 3
(v) No Material Adverse Change in Business............. 3
(vi) Formation of the Partnership; Due Organization/
Registration of the Partners....................... 4
(vii) Good Standing of the Guarantor..................... 4
(viii) Good Standing of the Material Subsidiaries......... 5
(ix) Authorization of this Agreement.................... 5
(x) Authorization of the Indenture..................... 5
(xi) Authorization of the Notes......................... 5
(xii) Authorization of the Guarantee..................... 6
(xiii) Description of the Notes, the Guarantee and
the Indenture...................................... 6
(xiv) Absence of Defaults and Conflicts.................. 6
(xv) Absence of Labor Dispute........................... 7
(xvi) Absence of Proceedings............................. 7
(xvii) Absence of Manipulation............................ 7
(xviii) Possession of Intellectual Property................ 7
(xix) Absence of Further Requirements.................... 8
(xx) Investment Company Act............................. 8
(xxi) Good and Marketable Title.......................... 8
(xxii) Environmental Laws................................. 8
(xxiii) ERISA.............................................. 9
(xxiv) Insurance.......................................... 9
(xxv) Taxes.............................................. 10
(xxvi) Internal Controls.................................. 10
(xxvii) No Unlawful Payments............................... 10
(xxviii) No Brokerage Commission; Finder's Fee.............. 10
(xxix) Dividend Payments.................................. 10
(xxx) Similar Offering................................... 11
(xxxi) Rule 144A Eligibility.............................. 11
(xxxii) No General Solicitation or General Advertising..... 11
(xxxiii) No Registration Required........................... 11
(xxxiv) Reporting Guarantor................................ 11
(xxxv) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Compliance.......................... 11
(xxxvi) Other Charges...................................... 11
(b) Officer's Certificates...................................... 12
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.................. 12
(a) Securities.................................................. 12
(b) Payment..................................................... 12
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(c) Denominations; Registration................................. 12
SECTION 3. Covenants of the Partnership and the Guarantor.................... 12
(a) Offering Circular........................................... 13
(b) Notice and Effect of Material Events........................ 13
(c) Amendments to Offering Circular and Supplements............. 13
(d) Qualifications of the Securities for Offer and Sale......... 13
(e) Use of Proceeds............................................. 14
(f) Rating of the Securities.................................... 14
(g) Restriction on Sale of the Securities....................... 14
(h) DTC......................................................... 14
(i) Reporting Requirements...................................... 14
SECTION 4. Payment of Expenses............................................... 14
(a) Expenses.................................................... 14
(b) Termination of Agreement.................................... 15
SECTION 5. Conditions of Initial Purchasers' Obligations..................... 15
(a) Opinions of Counsels for the Partners....................... 15
(b) Opinions of Counsel for the Partners and the Guarantor...... 15
(c) Opinion of Counsel for Initial Purchasers................... 15
(d) Officers' Certificate....................................... 16
(e) Accountants' Comfort Letter................................. 16
(f) Bring-down Comfort Letter................................... 16
(g) Maintenance of Rating....................................... 16
(h) Indenture................................................... 16
(i) Additional Documents........................................ 16
(j) Termination of Agreement.................................... 17
SECTION 6. Subsequent Offers and Resales of the Securities................... 17
(a) Offer and Sale Procedures................................... 17
(i) Offers and Sales under Rule 144A...................... 17
(ii) No General Solicitation............................... 17
(iii) Purchases by Non-Bank Fiduciaries..................... 17
(iv) Subsequent Purchaser Notification..................... 17
(v) Restrictions on Transfer.............................. 18
(b) Covenants of the Partnership and the Guarantor.............. 18
(i) Integration........................................... 18
(ii) Rule 144A Information................................. 18
(iii) Restriction on Purchases.............................. 18
(iv) No Registration under the 1940 Act.................... 18
(c) Qualified Institutional Buyer............................... 19
SECTION 7. Indemnification................................................... 19
(a) Indemnification of Initial Purchasers....................... 19
(b) Indemnification of the Partnership and the Guarantor........ 19
(c) Actions against Parties; Notification....................... 20
(d) Settlement without Consent if Failure to Reimburse.......... 20
SECTION 8. Contribution...................................................... 20
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.... 22
SECTION 10. Termination of Agreement.......................................... 22
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(a) Termination; General........................................ 22
(b) Liabilities................................................. 22
SECTION 11. Default by One or More of the Initial Purchasers.................. 23
SECTION 12. No Advisory or Fiduciary Responsibility........................... 23
SECTION 13. Consent to Jurisdiction........................................... 24
SECTION 14. Waiver of Immunity................................................ 24
SECTION 15. Judgment Currency................................................. 25
SECTION 16. Notices........................................................... 25
SECTION 17. Parties........................................................... 26
SECTION 18. GOVERNING LAW AND TIME............................................ 26
SECTION 19. Effect of Headings................................................ 26
SECTION 20. Counterparts...................................................... 26
SCHEDULES
Schedule A List of Initial Purchasers
Schedule B RPM United Kingdom G.P.--6.70% Senior Notes due 2015
Schedule C List of Material Subsidiaries
EXHIBITS
Exhibit A [Intentionally left blank]
Exhibit B Form of Opinion of Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian and
Ontario Counsel for the Partners, to be Delivered Pursuant to
Section 5(a)
Exhibit C Form of Opinion of P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel of the
Guarantor, to be Delivered Pursuant to Section 5(b)
Exhibit D Form of Opinion of ▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇ LLP, U.S. Counsel for
the Partners and the Guarantor, to be Delivered Pursuant to Section
5(b)
Exhibit E Forms of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Canadian and Nova Scotia
Counsel for the Partners, to be Delivered Pursuant to Section 5(a)
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RPM UNITED KINGDOM G.P.
by
RPM CANADA and RPM CANADA INVESTMENT COMPANY
as its general partners, and in its name
$150,000,000
6.70% Senior Notes due 2015
PURCHASE AGREEMENT
October 19, 2005
▇▇▇▇▇▇▇, Sachs & Co.
As Representative of the several Initial Purchasers
c/o Goldman ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
RPM United Kingdom G.P. ("RPM UK") is a general partnership governed by the
laws of England and Wales and between its general partners, RPM Canada
(Registered Name) ("RPM Canada"), a general partnership registered under the
laws of the Province of Ontario, and RPM Canada Investment Company ("RPM
Investment"), an unlimited company existing under the laws of the Province of
Nova Scotia, each as a general partner (each a "Partner" and collectively, the
"Partners") of, and doing business in the name of, RPM UK. Under the law of
England and Wales, RPM UK is a contractual relationship between the Partners and
is not a legal entity and has no legal distinctive personality other than that
of its Partners. This contractual relationship of the Partners acting in their
capacities as general partners of, and doing business in the name of, RPM UK is
hereinafter referred to as the "Partnership." The Partnership proposes to issue
and sell to the Initial Purchasers named in Schedule A hereto (collectively, the
"Initial Purchasers," which term shall also include any initial purchaser
substituted as hereinafter provided in Section 11 hereof), for whom ▇▇▇▇▇▇▇,
Sachs & Co. is acting as representative (in such capacity, the
"Representative"), with respect to the issue and sale by the Partnership
pursuant to the partnership agreement dated August 24, 2005 (the "Partnership
Agreement") between each of the Partners, and the purchase by the Initial
Purchasers, acting severally and not jointly, of the respective principal
amounts set forth in said Schedule A of $150,000,000 aggregate principal amount
of the 6.70% Senior Notes due 2015 (the "Notes") issued in the name of the
Partnership. The Notes will be fully and unconditionally guaranteed (the
"Guarantee," and together with the Notes, the "Securities") as to principal,
premium, if any, additional amounts, if any, and interest by RPM International
Inc., a Delaware corporation (the "Guarantor"). The Notes are to be issued
pursuant to an indenture, to be dated as of the Closing Time (as defined in
Section 2(b)) (the "Indenture"), among the Partnership, the Guarantor, and The
Bank of New York Trust Company, N.A., as trustee (the "Trustee"), and for
purposes of Article 13 of the Indenture, RPM Canada and RPM Investment, each in
its own capacity.
Each of the Partnership and the Guarantor understand that the Initial
Purchasers propose to make an offering of the Securities on the terms and in the
manner set forth herein and agrees that the Initial Purchasers may resell,
subject to the conditions set forth herein, all or a portion of the Securities
to purchasers ("Subsequent Purchasers") at any time after this Agreement has
been executed and delivered. The Securities are to be offered and sold through
the Initial Purchasers without being registered under the Securities Act of
1933, as amended (the "1933 Act"), in reliance upon exemptions therefrom. The
Partnership does not intend to make a registered exchange offer for the
Securities or to register the resale of the Securities. Pursuant to the terms of
the Securities and the Indenture, investors that acquire Securities may only
resell or otherwise transfer such Securities if an exemption from the
registration requirements of the 1933 Act is available (including the exemption
afforded by Rule 144A ("Rule 144A") of the rules and regulations promulgated
under the 1933 Act (the "1933 Act Regulations") by the Securities and Exchange
Commission (the "Commission")).
The Partnership has prepared and delivered to each Initial Purchaser copies
of a preliminary offering circular dated October 19, 2005 (the "Preliminary
Offering Circular") and have prepared and will deliver to each Initial
Purchaser, by 9:00 A.M. (Eastern time) on the second calendar day after the date
hereof, copies of a final offering circular dated October 19, 2005 (the "Final
Offering Circular"), each for use by such Initial Purchaser in connection with
its solicitation of purchases of, or offering of, the Securities. "Offering
Circular" means, with respect to any date or time referred to in this Agreement,
the most recent offering circular (whether the Preliminary Offering Circular or
the Final Offering Circular, or any amendment or supplement to either such
document), including exhibits thereto and any documents incorporated therein by
reference, which has been prepared and delivered by the Partnership and the
Guarantor to the Initial Purchasers in connection with their solicitation of
purchases of, or offering of, the Securities.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included," "stated" or "described" in
the Offering Circular (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Offering Circular; and
all references in this Agreement to amendments or supplements to the Offering
Circular shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is
incorporated by reference in the Offering Circular.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Partnership and the Guarantor.
Each of the Partnership and the Guarantor, jointly and severally, represents and
warrants to each Initial Purchaser as of the date hereof, as of the Closing Time
referred to in Section 2(b) hereof, and agrees with each Initial Purchaser, as
follows:
(i) Offering Circular. The Preliminary Offering Circular or the Final
Offering Circular did not and will not, as of their respective dates, and
at the Closing Time referred to in Section 2 will not, include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light
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of the circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Preliminary Offering Circular or the
Final Offering Circular made in reliance upon and in conformity with
information furnished to the Partnership and the Guarantor in writing by
any Initial Purchaser through the Representative expressly for use in the
Preliminary Offering Circular or the Final Offering Circular.
(ii) Incorporated Documents. The Offering Circular as delivered from
time to time shall incorporate by reference the most recent Annual Report
of the Guarantor on Form 10-K filed with the Commission, each Quarterly
Report of the Guarantor on Form 10-Q and each Current Report of the
Guarantor on Form 8-K filed (not furnished) with the Commission subsequent
to the date of filing of the most recent Annual Report of the Guarantor on
Form 10-K and such other reports as specifically incorporated by reference
in the Offering Circular. The documents incorporated by reference in the
Offering Circular (the "Incorporated Documents"), at the time they were or
hereafter are filed with the Commission, or if amended, as so amended,
complied and will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission thereunder
(the "1934 Act Regulations"). There are no contracts or documents which are
required to be described in the Offering Circular or the Incorporated
Documents which have not been so described, and there are no contracts or
documents which are required to be filed as exhibits to the Incorporated
Documents which have not been so filed as required.
(iii) Independent Accountants. ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, LLP, the
accountants who certified the financial statements and supporting schedules
incorporated by reference in the Offering Circular were independent public
accountants within the meaning of Regulation S-X under the 1933 Act and the
1933 Act Regulations as of the date of the Guarantor's most recent Form
10-K and up to and including August 15, 2005. The Guarantor's recently
appointed accountants, Ernst & Young LLP, are independent public
accountants within the meaning of Regulation S-X under the 1933 Act and the
1933 Act Regulations.
(iv) Financial Statements. The financial statements, together with the
related schedules and notes, incorporated by reference into the Offering
Circular present fairly the financial position of the Guarantor and its
consolidated subsidiaries at the dates indicated and the statement of
income, shareholders' equity and cash flows of the Guarantor and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States ("GAAP") applied on a consistent
basis throughout the periods involved. The supporting schedules
incorporated by reference into the Offering Circular present fairly in
accordance with GAAP the information required to be stated therein.
(v) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Offering Circular (exclusive of any
amendment thereto), except as otherwise stated therein, (A) there has been
no material adverse change in the condition, financial or otherwise, or in
the earnings, business or business
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prospects of each of the Partnership, the Guarantor and the Guarantor's
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by each of the Partnership, the Guarantor
or any of the Guarantor's Material Subsidiaries (as defined below), other
than those in the ordinary course of business, which are material with
respect to each of the Partnership, the Guarantor and the Guarantor's
Material Subsidiaries considered as one enterprise, (C) except for regular
quarterly dividends on the common stock in amounts per share that are
consistent with past practice, there has been no dividend or distribution
of any kind declared, paid or made by the Guarantor on any class of its
capital stock, (D) there has not been any material change in the
partnership interests or capital stock, as the case may be, short-term debt
or long-term debt of each of the Partnership, the Guarantor and the
Guarantor's Material Subsidiaries, and (E) since the date of the latest
audited financial statements incorporated by reference in the Offering
Circular, there has been no change in the Guarantor's internal control over
financial reporting that has materially affected, or is reasonably likely
to materially affect, the Guarantor's internal control over financial
reporting.
(vi) Formation of the Partnership; Due Organization/Registration of
the Partners. RPM Canada and RPM Investment entered into a partnership
agreement dated August 24, 2005 to establish a general partnership, known
as "RPM United Kingdom G.P.," and selected the laws of England and Wales as
the choice of law applicable to the partnership agreement. Under the laws
of England and Wales, the Partnership is a contractual relationship between
RPM Canada and RPM Investment and is not a separate legal entity and has no
distinctive legal personality other than that of its Partners. Each of RPM
Investment and RPM Canada Company ("RPMCAN") has been duly organized or
amalgamated, respectively, and is validly existing as an unlimited company
under the laws of the Province of Nova Scotia. RPM Canada conducts business
through its partners, RPM Investment and RPMCAN, and is duly registered
under the Business Names Act (Ontario) and existing as a general
partnership under the Partnerships Act (Ontario). Each of the Partners has
power and authority to own, lease and operate its properties and to conduct
its business as described in the Offering Circular and to enter into and
perform its obligations under, or as contemplated by, this Agreement and
the Indenture. Each of the Partners is duly qualified as a foreign
partnership or corporation, as the case may be, to transact business and is
in good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of the Guarantor. The Guarantor has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Offering Circular and to enter into and perform its
obligations under, or as contemplated by, this Agreement. The Guarantor is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
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(viii) Good Standing of the Material Subsidiaries. Each corporate
subsidiary of the Guarantor listed on Schedule C hereto (collectively, the
"Corporate Material Subsidiaries") has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Offering Circular. Each Corporate Material Subsidiary is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good standing
would not result in a Material Adverse Effect. All of the issued and
outstanding shares of capital stock or partnership interests, as the case
may be, of each subsidiary of the Guarantor have been duly authorized and
validly issued, are fully paid and non-assessable, except for RPMCAN and
RPM Investment, the shares of which are assessable, and except for
directors' qualifying shares and third party interests in joint ventures in
which the Guarantor invests, are owned directly or indirectly by the
Guarantor, free and clear of all liens, encumbrances, equities or claims.
RPM Canada, which exists as a general partnership under the Partnership Act
(Ontario), and the Corporate Material Subsidiaries are the only
subsidiaries of the Guarantor which meet the criteria in the definition of
"significant subsidiary" pursuant to Rule 1-02(w) of Regulation S-X under
the 1933 Act. RPM Investment, which exists as an unlimited company under
the laws of the Province of Nova Scotia, is not a "significant subsidiary"
pursuant to Rule 1-02(w) of Regulation S-X under the 1933 Act. The
Corporate Material Subsidiaries, RPM Canada and RPM Investment are
collectively referred to herein as "Material Subsidiaries."
(ix) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by each of the Partnership and the
Guarantor.
(x) Authorization of the Indenture. The Indenture has been duly
authorized by the Partnership and the Guarantor and, when executed and
delivered by the Partners, the Guarantor and the Trustee, and for purposes
of Article 13 of the Indenture, each of RPM Canada and RPM Investment in
its own capacity, will constitute a valid and binding agreement of each of
RPM Canada, RPM Investment and the Guarantor, enforceable against each of
RPM Canada, RPM Investment and the Guarantor in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(xi) Authorization of the Notes. The Notes have been duly authorized
and, at the Closing Time, will have been duly executed by the Partnership
and, when authenticated, issued and delivered in the manner provided for in
the Indenture and delivered against payment of the purchase price therefor
as provided in this Agreement, will constitute valid and binding
obligations of the Partners, enforceable against the Partners in accordance
with their terms, except as the enforcement thereof may be limited
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by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity or at
law), and will be in the form contemplated by, and entitled to the benefits
of, the Indenture.
(xii) Authorization of the Guarantee. The Guarantee has been duly
authorized by the Guarantor and, when executed in accordance with the
provisions of the Indenture and delivered to the Initial Purchasers in
accordance with the terms of this Agreement, will be a valid and binding
obligation of the Guarantor, enforceable in accordance with its terms,
except that enforceability may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar
laws affecting creditors' rights generally and subject to general
principles of equity (regardless of whether enforceability is considered in
a proceeding in equity or at law).
(xiii) Description of the Notes, the Guarantee and the Indenture. The
Notes, the Guarantee and the Indenture will conform in all material
respects to the respective statements relating thereto contained in the
Offering Circular.
(xiv) Absence of Defaults and Conflicts. None of the Partnership, the
Guarantor nor any of the Guarantor's Material Subsidiaries is in violation
of its charter or by-laws or other constituting or organizational document
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Partnership, the Guarantor or any of
the Guarantor's Material Subsidiaries is a party or by which the
Partnership, the Guarantor or any of the Guarantor's Material Subsidiaries
may be bound, or to which any of the property or assets of the Partnership,
the Guarantor or any of the Guarantor's Material Subsidiaries is subject
(collectively, "Agreements and Instruments") except for such defaults
relating to such Agreements and Instruments that would not reasonably be
expected to result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture, the Guarantee
and the Notes and the consummation of the transactions contemplated herein
and in the Offering Circular (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Offering Circular under the caption "Use of Proceeds") and
compliance by the Partners, the Partnership and the Guarantor with their
obligations hereunder and under the Indenture, the Guarantee and the Notes
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or a Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Partnership, the Guarantor or any of the Guarantor's
subsidiaries pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults or Repayment Events or liens, charges or
encumbrances that, singly or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect or prevent the Partnership
or the Guarantor from performing their respective obligations hereunder),
nor will such action result in any violation of (i) the provisions of the
charter or by-laws or
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other constituting or organizational document of each of the Partnership,
the Guarantor or any of the Guarantor's Material Subsidiaries or (ii) any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Partnership, the Guarantor or any of
the Guarantor's subsidiaries or any of their assets, properties or
operations, except in the case of clause (ii), for such violation that
would not result in a Material Adverse Effect or prevent the Partnership or
the Guarantor from performing their respective obligations hereunder. As
used herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment prior to the stated maturity or repayment thereof
of all or a portion of such indebtedness by the Partnership, the Guarantor
or any of the Guarantor's subsidiaries.
(xv) Absence of Labor Dispute. No labor dispute with the employees of
the Partnership, the Guarantor or any of the Guarantor's Material
Subsidiaries exists or, to the knowledge of the Partnership or the
Guarantor, is imminent which, in either case, might be expected to have a
Material Adverse Effect.
(xvi) Absence of Proceedings. Except as disclosed in the Offering
Circular, there is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Partnership or the
Guarantor, threatened, against or affecting the Partnership, the Guarantor
or any of the Guarantor's subsidiaries, which, singly or in the aggregate,
if determined adversely, would reasonably be expected to result in a
Material Adverse Effect.
(xvii) Absence of Manipulation. None of the Partnership, the Guarantor
nor any affiliate of the Partnership or the Guarantor has taken, nor will
the Partnership, the Guarantor or any affiliate take, directly or
indirectly, any action which is designed to or which has constituted or
which would be expected to cause or result in stabilization or manipulation
of the price of any security of the Partnership or the Guarantor to
facilitate the sale of the Securities.
(xviii) Possession of Intellectual Property. The Guarantor and the
Guarantor's subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and to the knowledge of the Partnership or the
Guarantor, neither the Guarantor nor any of the Guarantor's subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Partnership, the Guarantor or any of the Guarantor's subsidiaries therein,
and which infringement or conflict (if the subject of any
7
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(xix) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Partnership, RPM
Canada, RPM Investment or the Guarantor of their obligations hereunder or
under the Indenture, in connection with the offering, issuance or sale of
the Securities hereunder, or the consummation of the transactions
contemplated by this Agreement or the Offering Circular, or for the due
execution, delivery or performance by the Partnership, RPM Canada, RPM
Investment or the Guarantor of this Agreement or the Indenture, or for the
valid authorization, issuance, sale and delivery of the Securities, except
such as have been already obtained.
(xx) Investment Company Act. None of the Partners, the Partnership,
the Guarantor nor any of the Guarantor's subsidiaries is, nor upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Offering
Circular will be, an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xxi) Good and Marketable Title. The Partnership, the Guarantor and
each of the Guarantor's Material Subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects, and all assets held under lease by the
Partnership, the Guarantor and the Guarantor's Material Subsidiaries are
held by them under valid, subsisting and enforceable leases, with such
exceptions to each of the above statements that are described in the
Offering Circular or that have not had and would not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(xxii) Environmental Laws. There has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or treatment
of toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances by the Partnership, the Guarantor or any of the
Guarantor's subsidiaries (or, to the knowledge of the Partnership, the
Guarantor, any of the Guarantor's subsidiaries or any of their predecessors
in interest) at, upon or from any of the property now or previously owned
or leased by the Partnership, the Guarantor or the Guarantor's subsidiaries
in violation of, and the Partnership, the Guarantor or any of the
Guarantor's subsidiaries has no liability under, any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which
would require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation,
liability or remedial action which would not have, or could not be
reasonably likely to have, singularly or in the aggregate with all such
violations, liabilities and remedial actions, a Material Adverse Effect;
there has been no spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes, solid
wastes, hazardous
8
wastes or hazardous substances due to or caused by the Partnership, the
Guarantor or any of the Guarantor's subsidiaries or with respect to which
the Partnership, the Guarantor or any of the Guarantor's subsidiaries have
knowledge or are liable, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have or
would not be reasonably likely to have, singularly or in the aggregate with
all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a Material Adverse Effect. The terms "hazardous
wastes," "toxic wastes," "hazardous substances" and "medical wastes" shall
have the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection.
In the ordinary course of their business, each of the Partners, the
Partnership, the Guarantor and the Guarantor's subsidiaries conduct
periodic reviews of the effect of any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws") on the business,
operations and properties of the Partnership, the Guarantor and the
Guarantor's subsidiaries, in the course of which they identify and evaluate
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Partnership
and the Guarantor have reasonably concluded that such associated costs and
liabilities have not had and would not, singularly or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(xxiii) ERISA. The Partnership and the Guarantor are in compliance in
all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Partnership or the
Guarantor would have any liability; neither of the Partnership nor the
Guarantor has incurred and expects to incur liability under (A) Title IV of
ERISA with respect to the termination of, or withdrawal from, any "pension
plan" or (B) Section 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations thereunder
(the "Code"); and each "pension plan" for which the Partnership and the
Guarantor would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
(xxiv) Insurance. The Partnership, the Guarantor and each of the
Guarantor's subsidiaries carry, or are covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties, other
than as otherwise disclosed in the Offering Circular.
9
(xxv) Taxes. The Partnership and the Guarantor have filed all federal,
state, foreign and local income and franchise tax returns required to be
filed through the date hereof and have paid all taxes due thereon, and no
tax deficiency has been determined adversely to the Partnership, the
Guarantor or any of the Guarantor's subsidiaries which has had, nor does
the Partnership or the Guarantor have any knowledge of any tax deficiency
which, if determined adversely to the Partnership, the Guarantor or any of
the Guarantor's subsidiaries, might have, a Material Adverse Effect.
(xxvi) Internal Controls. The Partnership and the Guarantor (A) make
and keep accurate books and records and (B) maintain internal accounting
controls which provide reasonable assurance that (i) transactions are
executed in accordance with management's authorization, (ii) transactions
are recorded as necessary to permit preparation of its financial statements
and to maintain accountability for its assets, (iii) access to its assets
is permitted only in accordance with management's authorization and (iv)
the reported accountability for its assets is compared with existing assets
at reasonable intervals; (X) the Guarantor's internal control over
financial reporting (as that term is defined in Rule 13a-15(f) of the ▇▇▇▇
▇▇▇) was effective as of May 31, 2005, (Y) the Guarantor is not aware of
any change in its internal control over financial reporting that occurred
since May 31, 2005, that has materially affected, or is reasonably likely
to materially affect its internal control over financial reporting, and (Z)
the Guarantor is not aware of any change in the effectiveness of its
disclosure controls and procedures since August 31, 2005.
(xxvii) No Unlawful Payments. To the best knowledge of the Partnership
and the Guarantor after due inquiry, neither the Partnership, the Guarantor
nor any of the Guarantor's subsidiaries, nor any director, officer, agent,
employee or other person associated with or acting on behalf of the
Partnership, the Guarantor or any of the Guarantor's subsidiaries, (A) has
used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; (B) made any
direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (C) violated or is in violation
of any provision of the Foreign Corrupt Practices Act of 1977; or (D) made
any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(xxviii) No Brokerage Commission; Finder's Fee. To the best knowledge
of the Partnership and the Guarantor after due inquiry, there are no
contracts, agreements or understandings between the Partnership or the
Guarantor and any person that would give rise to a valid claim against the
Partnership, the Guarantor or any Initial Purchaser for a brokerage
commission, finder's fee or other like payment in connection with the
offering of the Securities.
(xxix) Dividend Payments. No Material Subsidiary of the Guarantor is
currently prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any dividends
to the Guarantor, from making any other distribution on such Material
Subsidiary's capital stock or from repaying the Guarantor any loans or
advances to such Material Subsidiary from the Guarantor.
10
(xxx) Similar Offering. Neither the Partnership, the Guarantor nor any
of their affiliates, as such term is defined in Rule 501(b) under the 1933
Act (each, an "Affiliate"), has, directly or indirectly, solicited any
offer to buy, sold or offered to sell or otherwise negotiated in respect
of, or will solicit any offer to buy, sell or offer to sell, or otherwise
negotiate in respect of, in the United States or to any United States
citizen or resident, any security which is or would be integrated with the
sale of the Notes in a manner that would require the Securities to be
registered under the 1933 Act.
(xxxi) Rule 144A Eligibility. The Securities are eligible for resale
pursuant to Rule 144A and will not be, at the Closing Time, of the same
class as securities listed on a national securities exchange registered
under Section 6 of the 1934 Act, or quoted on a U.S. automated interdealer
quotation system.
(xxxii) No General Solicitation or General Advertising. None of the
Partnership, the Guarantor, their Affiliates or any person acting on its or
any of their behalf (other than the Initial Purchasers and their respective
Affiliates, as to whom the Partnership and the Guarantor make no
representation) has engaged or will engage, in connection with the offering
of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under Regulation D of the
1933 Act.
(xxxiii) No Registration Required. Subject to compliance by the
Initial Purchasers with the representations and warranties and the
procedures set forth in Section 6 hereof, it is not necessary in connection
with the offer, sale and delivery of the Securities to the Initial
Purchasers and the initial resale by the Initial Purchasers to each
Subsequent Purchaser in the manner contemplated by this Agreement and the
Offering Circular to register the Securities under the 1933 Act or to
qualify the Indenture under the 1939 Act.
(xxxiv) Reporting Guarantor. The Guarantor is subject to and in
compliance with the reporting requirements of Section 13 or Section 15(d)
of the 1934 Act.
(xxxv) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Compliance. There is and has been no failure in
any material respect on the part of the Guarantor or, to the knowledge of
the Guarantor, any of the Guarantor's directors or officers in their
capacities as such, to comply with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act
of 2002 and the rules and regulations promulgated in connection therewith
(the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act"), including Section 402 related to loans, Section
404 related to internal control over financial reporting and Sections 302
and 906 related to certifications.
(xxxvi) Other Charges. Except as described in the Offering Circular,
under the laws of the United Kingdom or any political subdivision thereof
or therein or under the federal laws of Canada or any political subdivision
or taxing authority thereof or therein existing on the date hereof payments
made by the Partnership, RPM Canada, RPM Investment and the Guarantor, as
the case may be, to holders under the Notes or the Guarantee, as the case
may be, and the Indenture will not be subject to any withholding tax or
similar charges.
11
(b) Officer's Certificates. Any certificate signed by any officer of the
Partnership or the Guarantor delivered to the Initial Purchasers or to counsel
for the Initial Purchasers shall be deemed a representation and warranty by the
Partnership and the Guarantor, respectively, to the Initial Purchasers as to the
matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) Securities. On the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, each of the Partnership and the Guarantor agrees to sell to each Initial
Purchaser, severally and not jointly, and each Initial Purchaser, severally and
not jointly, agrees to purchase from the Partnership and the Guarantor at the
price set forth in Schedule B hereto the principal amount of the Securities set
forth opposite the name of such Initial Purchaser in Schedule A plus any
additional principal amount of Securities that such Initial Purchaser may become
obligated to purchase pursuant to the provisions of Section 11 hereof.
(b) Payment. Payment of the purchase price for, and delivery of one or more
global certificates for, the Securities shall be made at the offices of Shearman
& Sterling LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other
place as shall be agreed upon by the Representative and the Partnership, at 9:00
A.M. (Eastern time) on the third business day after the date hereof (unless
postponed in accordance with the provisions of Section 11 hereof), or at such
other time not later than ten business days after such date as shall be agreed
upon by the Representative and the Partnership (such time and date of payment
and delivery being herein called the "Closing Time"). Payment shall be made to
the Partnership by wire transfer of immediately available funds to a bank
account designated by the Partnership, against delivery to the Representative
for the respective accounts of the Initial Purchasers of the Securities to be
purchased by them. It is understood that each Initial Purchaser has authorized
the Representative, for their accounts, to accept delivery of, receipt for, and
make payment of the purchase price for the Securities that it has agreed to
purchase. ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., individually and not as representative of the
Initial Purchasers, may (but shall not be obligated to) make payment of the
purchase price for the Securities to be purchased by any Initial Purchaser whose
funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such Initial
Purchaser from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Securities shall be
in such denominations (of $1,000 or integral multiples thereof) and registered
in such names as the Representative may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be; provided that any Securities in global form be registered in the
name of Cede & Co. The certificates for the Securities will be made available
for examination and packaging by the Initial Purchasers in The City of New York
not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Partnership and the Guarantor. Each of the
Partnership and the Guarantor, jointly and severally, covenants with each
Initial Purchaser as follows:
12
(a) Offering Circular. The Partnership or the Guarantor, as promptly as
possible, will furnish to the Initial Purchasers, without charge, such number of
copies of the Offering Circular and any amendments and supplements thereto and
any Incorporated Documents as the Initial Purchasers may reasonably request.
(b) Notice and Effect of Material Events. The Guarantor will immediately
notify each Initial Purchaser, and confirm such notice in writing, of (x) any
filing made by the Partnership or the Guarantor of information relating to the
offering of the Securities with any securities exchange or any other securities
regulatory body in the United States or any other jurisdiction, and (y) prior to
the completion of the placement of the Securities by the Initial Purchasers as
evidenced by a notice from the Initial Purchasers to the Guarantor in writing,
any material changes in or affecting the condition, financial or otherwise, or
the earnings, business or business prospects of the Partnership, the Guarantor
and the Guarantor's subsidiaries considered as one enterprise which (i) make any
statement in the Offering Circular false or misleading or (ii) are not disclosed
in the Offering Circular. In such event or if during such time any event shall
occur as a result of which it is necessary, in the reasonable opinion of any of
the Guarantor, their counsel, the Initial Purchasers or counsel for the Initial
Purchasers, to amend or supplement the Offering Circular in order that the
Offering Circular not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances then existing, the Partnership and
the Guarantor will forthwith amend or supplement the Offering Circular by
preparing and furnishing to each Initial Purchaser an amendment or amendments
of, or a supplement or supplements to, the Offering Circular (in form and
substance satisfactory in the reasonable opinion of counsel for the Initial
Purchasers) so that, as so amended or supplemented, the Offering Circular will
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a Subsequent Purchaser,
not misleading.
(c) Amendments to Offering Circular and Supplements. The Partnership or the
Guarantor will advise each Initial Purchaser promptly of any proposal to amend
or supplement the Offering Circular and will not effect any such amendment or
supplement without the consent of the Initial Purchasers. Neither the consent of
the Initial Purchasers, nor the Initial Purchasers' delivery of any such
amendment or supplement, shall constitute a waiver of any of the conditions set
forth in Section 5 hereof.
(d) Qualifications of the Securities for Offer and Sale. The Partnership
and the Guarantor will use its best efforts, in cooperation with the Initial
Purchasers, to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as the Representative may
designate and will maintain such qualification in effect as long as required in
connection with the distribution of the Securities; provided, however, that the
Partnership or the Guarantor shall not be obligated to file any general consent
to service of process or to qualify as a foreign partnership or corporation, as
the case may be, or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Partnership and
the Guarantor will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for so long
as may be required in connection with the distribution of the Securities.
13
(e) Use of Proceeds. The Partnership will use the net proceeds received
from the sale of the Securities in the manner indicated in the Offering Circular
under "Use of Proceeds."
(f) Rating of the Securities. The Partnership and the Guarantor shall take
all reasonable action necessary to enable Standard & Poor's Rating Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") and ▇▇▇▇▇'▇ Investor
Service, Inc. ("Moody's") to provide their respective credit ratings of the
Securities.
(g) Restriction on Sale of the Securities. During a period of 45 days from
the date of the Offering Circular, the Partnership and the Guarantor will not,
without the prior written consent of the Representative, directly or indirectly,
issue, sell, offer or agree to sell, grant any option for the sale of, or
otherwise dispose of, any other similar debt securities of the Partnership or
the Guarantor or securities of the Partnership or the Guarantor that are
convertible into, or exchangeable for, the offered Securities or such other
similar debt securities. The foregoing sentence shall not apply to (A) the
Securities to be sold hereunder and (B) commercial paper issued by the
Partnership or the Guarantor in the ordinary course of their respective
business.
(h) DTC. The Partnership and the Guarantor will cooperate with the
Representative and use their best efforts to permit the Securities to be
eligible for clearance and settlement through the facilities of DTC.
(i) Reporting Requirements. The Guarantor, during the period when the
Offering Circular is required to be delivered, will file all documents required
to be filed with the Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Guarantor will pay all expenses (including value added
tax and any other tax of a similar nature, if applicable) incident to the
performance of its and the Partnership' obligations under this Agreement,
including (i) the preparation, printing, delivery to the Initial Purchasers and
any filing of the Offering Circular (including financial statements and any
schedules or exhibits thereto and any Incorporated Document) and of each
amendment or supplement thereto, (ii) the preparation, printing and delivery to
the Initial Purchasers of this Agreement, any Agreement among Initial
Purchasers, the Indenture, the Notes, the Guarantee and such other documents as
may be required in connection with the offer, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance and delivery of the
global certificates representing the Securities to the Initial Purchasers
including any transfer taxes, any stamp or other duties payable upon the sale,
issuance and delivery of the Securities to the Initial Purchasers and any
charges of DTC in connection therewith, (iv) the fees and disbursements of the
Partners', the Partnership's and the Guarantor's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(d), including filing fees and the
reasonable fees and disbursements of counsel for the Initial Purchasers in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) any fees of the NASD in connection with
the Securities, (vii) the fees and expenses of the Trustee, including the fees
and disbursements of counsel for the Trustee in connection with the Indenture,
the Notes and the Guarantee, (viii) any fees payable in
14
connection with the rating of the Securities and (ix) all reasonable costs and
expenses relating to investor presentations, including any "road show"
presentations undertaken in connection with the marketing of the offering of the
Securities, including, without limitation, expenses associated with the
production of road show slides, graphics and Bloomberg presentation recordings.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section 10
hereof, the Partnership and the Guarantor shall reimburse the Initial Purchasers
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers' Obligations. The obligations
of the several Initial Purchasers hereunder are subject to the accuracy of the
representations and warranties of the Partnership and the Guarantor contained in
Section 1 hereof or in certificates of any officer of the Partnership and the
Guarantor delivered pursuant to the provisions hereof, to the performance by the
Partnership and the Guarantor, as applicable, of their respective covenants and
other obligations hereunder, and to the following further conditions:
(a) Opinions of Counsels for the Partners. At the Closing Time, the Initial
Purchasers shall have received the opinion of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, U.K.
counsel for the Partners, in form and substance satisfactory to counsel for the
Initial Purchasers, and the opinions of Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian
counsel for the Partners and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Nova Scotia counsel for the
Partners, each in form and substance satisfactory to counsel for the Initial
Purchasers and dated as of the Closing Time, to the effect set forth in Exhibits
B and E hereto, respectively. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of the officers of the Partnership and the Partners
acting on behalf of the Partnership and certificates of public officials.
(b) Opinions of Counsel for the Partners and the Guarantor. At the Closing
Time, the Initial Purchasers shall have received the opinion of P. ▇▇▇▇▇
▇▇▇▇▇▇▇▇, General Counsel of the Guarantor, and the opinion of ▇▇▇▇▇▇, Halter &
▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Partners, the Partnership and the Guarantor,
each in form and substance satisfactory to counsel for the Initial Purchasers
and dated as of the Closing Time, to the effect set forth in Exhibits C and D
hereto, respectively. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of the officers of the Partners, the Partnership and the Guarantor
and certificates of public officials.
(c) Opinion of Counsel for Initial Purchasers. At the Closing Time, the
Initial Purchasers shall have received the opinion, dated as of the Closing
Time, of Shearman & Sterling LLP, counsel for the Initial Purchasers, in form
and substance satisfactory to the Initial Purchasers. In giving such opinion
such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York, the federal law of the United
States and the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to the Initial Purchasers. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Partners, the Partnership and the Guarantor and certificates of public
officials.
15
(d) Officers' Certificate. At the Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Offering Circular (exclusive of any amendments or supplements
thereto after the date of this Agreement), any material adverse change in the
condition, financial or otherwise, or in the earnings, business or business
prospects of the Partnership, the Guarantor and the Guarantor's subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business (a "material adverse change"), and the Initial Purchasers shall have
received a certificate of the President or a Senior Vice President of the
Guarantor and of a senior executive officer of the Partnership and the Chief
Financial Officer of the Guarantor and the Partnership, dated as of the Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as of the
Closing Time, and (iii) the Partnership has complied with all of the agreements
entered into in connection with the transaction contemplated herein and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Closing Time.
(e) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Initial Purchasers shall have received from each of ▇▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇, LLP and Ernst & Young LLP a letter dated such date, in the form and
substance satisfactory to the Initial Purchasers, containing statements and
information of the type ordinarily included in accountants' comfort letters to
Initial Purchasers with respect to the financial statements and certain
financial information contained in the Offering Circular.
(f) Bring-down Comfort Letter. At the Closing Time, the Initial Purchasers
shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, LLP and Ernst & Young LLP a
letter, dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to the Closing Time.
(g) Maintenance of Rating. At the Closing Time, the Securities shall be
rated at least BBB (negative outlook) by S&P and Baa3 (negative outlook) by
Moody's, and the Partnership and the Guarantor shall have delivered to the
Initial Purchasers a letter dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Initial Purchasers, confirming
that the Securities have such rating. Since the date of this Agreement, there
shall not have occurred a downgrading in the rating assigned to the Securities
or any of the Partnership's or the Guarantor's other securities by any
"nationally recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
security rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications (other than as
indicated above), its rating on the Securities or any of the Partnership's or
the Guarantor's other securities.
(h) Indenture. At or prior to the Closing Time, the Partnership, the
Guarantor and the Trustee, and for the purposes of Article 13 of the Indenture,
RPM Canada and RPM Investment, shall have duly executed and delivered the
Indenture.
(i) Additional Documents. At the Closing Time counsel for the Initial
Purchasers shall have been furnished with such documents, certificates and
opinions as they may reasonably request for the purpose of enabling them to pass
upon the issuance and sale of the Securities as
16
herein contemplated, or in order to evidence the accuracy and completeness of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Partnership and
the Guarantor in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the Initial
Purchasers and counsel for the Initial Purchasers.
(j) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Initial Purchasers by notice to the
Partnership and the Guarantor at any time at or prior to the Closing Time and
such termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 7, 8 and 9 shall
survive any such termination and remain in full force and effect.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Offer and Sale Procedures. Each of the Initial Purchasers, the
Partnership and the Guarantor, as the case may be, hereby establish and agree to
observe the following procedures in connection with the offer and sale of the
Securities.
(i) Offers and Sales under Rule 144A. Offers and sales of the
Securities shall only be made to persons whom the offeror or seller
reasonably believes to be qualified institutional buyers, as defined in
Rule 144A ("Qualified Institutional Buyer"). In each case, persons
acquiring the Securities from the Initial Purchasers are deemed to have
represented and agreed as provided in the Final Offering Circular under the
caption "Notice to Investors."
(ii) No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the ▇▇▇▇ ▇▇▇) shall be
used in the United Stated in connection with the offering or sale of the
Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of Securities acting as a fiduciary for one or more
third parties, each third party shall, in the reasonable belief of such
Initial Purchaser, be a Qualified Institutional Buyer, to whom the notice
required in subsection (iv) below has been given.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will
take reasonable steps to inform, and cause each of its U.S. affiliates to
take reasonable steps to inform, persons acquiring Securities from such
Initial Purchaser or its affiliate that the Securities (A) have not been
and will not be registered under the 1933 Act, (B) are being sold to them
without registration under the 1933 Act in reliance on Rule 144A or in
accordance with another exemption from registration under the 1933 Act, as
the case may be, and (C) may not be offered, sold or otherwise transferred
except (1) to the Partnership or (2) outside the United States in
accordance with Regulation S or inside the United States in accordance with
(x) Rule 144A to a person whom the seller reasonably believes is a
Qualified Institutional Buyer that is purchasing such Securities for its
own account or for the account of a Qualified Institutional Buyer to whom
notice is given that the offer,
17
sale or transfer is being made in reliance on Rule 144A or (y) pursuant to
another available exemption from registration under the 1933 Act.
(v) Restrictions on Transfer. The transfer restrictions and the other
provisions set forth in the Offering Circular under the caption "Notice to
Investors," including the legend required thereby, shall apply to the
Securities except as otherwise agreed by the Partnership, the Guarantor and
the Initial Purchasers. Following the sale of the Securities by the Initial
Purchasers to each Subsequent Purchaser pursuant to the terms hereof, the
Initial Purchasers shall not be liable or responsible to the Partnership or
the Guarantor for any losses, damages or liabilities suffered or incurred
by the Partnership or the Guarantor, including any losses, damages or
liabilities under the 1933 Act, arising from or relating to any subsequent
resale or transfer of any Securities.
(b) Covenants of the Partnership and the Guarantor. Each of the Partnership
and the Guarantor, jointly and severally, covenants with each Initial Purchaser
as follows:
(i) Integration. Each of the Partnership and the Guarantor agrees that
it will not and will cause its Affiliates not to, directly or indirectly,
solicit any offer to buy, sell or make any offer or sale of, or otherwise
negotiate in respect of, Securities of the Partnership, the Guarantor or
any Affiliate thereof of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the 1933 Act, such offer and
sale would render invalid (for the purpose of (A) the sale of the
Securities by the Partnership and the Guarantor to the Initial Purchasers,
(B) the resale of the Securities by the Initial Purchasers to Subsequent
Purchasers, or (C) the resale of the Securities by such Subsequent
Purchasers to others) the exemption from the registration requirements of
the 1933 Act provided by Section 4(2) thereof or by Rule 144A thereunder or
otherwise.
(ii) Rule 144A Information. Each of the Partnership and the Guarantor
agrees that, in order to render the Securities eligible for resale pursuant
to Rule 144A under the 1933 Act, while any of the Securities remain
outstanding, it will make available, upon request, to any holder of
Securities or prospective purchasers of Securities the information
specified in Rule 144A(d)(4), unless the Guarantor furnishes information to
the Commission pursuant to Section 13 or 15(d) of the 1934 Act.
(iii) Restriction on Purchases. Until the expiration of two years
after the original issuance of the Securities, each of the Partnership and
the Guarantor will not, and will cause their respective "affiliates" (as
such term is defined in Rule 144(a)(1) under the ▇▇▇▇ ▇▇▇) not to, purchase
or agree to purchase or otherwise acquire any Securities which are
"restricted securities" (as such term is defined under Rule 144(a)(3) under
the 1933 Act), whether as beneficial owner or otherwise (except as agent on
behalf of and for the account of customers in the ordinary course of
business as a securities broker in unsolicited broker's transactions)
unless, immediately upon any such purchase, the Partnership, the Guarantor
or any such affiliate shall submit such Securities to the Trustee for
cancellation.
(iv) No Registration under the 1940 Act. Each of the Partners and the
Guarantor agrees not to be or become, at any time prior to the expiration
of two years
18
after the Closing Time, an open-end investment company, unit investment
trust, closed-end investment company or face-amount certificate company
that is or is required to be registered under Section 8 of the 1940 Act.
(c) Qualified Institutional Buyer. Each Initial Purchaser severally and not
jointly represents and warrants to, and agrees with, the Partnership and the
Guarantor that it is a Qualified Institutional Buyer.
SECTION 7. Indemnification.
(a) Indemnification of Initial Purchasers. Each of the Partnership and the
Guarantor, jointly and severally, agrees to indemnify and hold harmless each
Initial Purchaser and each person, if any, who controls such Initial Purchaser
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Offering
Circular or the Final Offering Circular (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
7(d) below) any such settlement is effected with the written consent of the
Guarantor; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Representative),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information provided in writing to the Guarantor
through the Representative specifically for use in the Offering Circular (or any
amendment or supplement thereto).
(b) Indemnification of the Partnership and the Guarantor. Each Initial
Purchaser agrees, severally, and not jointly, to indemnify and hold harmless
each of the Partnership, the Guarantor and each person, if any, who controls the
Partnership and the Guarantor within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act against any and all loss, liability, claim,
19
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Offering
Circular (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Guarantor by such Initial
Purchaser through the Representative expressly for use in the Offering Circular
(or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 7(a) above,
counsel to the indemnified parties shall be selected by the Representative, and,
in the case of parties indemnified pursuant to Section 7(b) above, counsel to
the indemnified parties shall be selected by the Guarantor. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 or Section
8 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into, and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 8. Contribution. If the indemnification provided for in Section 7
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
20
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Partnership and the
Guarantor, on the one hand, and the Initial Purchasers, on the other hand, from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Partnership and the
Guarantor, on the one hand, and of the Initial Purchasers, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Partnership and the Guarantor on the
one hand and the Initial Purchasers on the other hand in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received
by the Partnership and the Guarantor and the total discount received by the
Initial Purchasers bear to the aggregate initial offering price of the
Securities.
The relative fault of the Partnership and the Guarantor on the one hand and
the Initial Purchasers on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Partnership and the Guarantor or by the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Partnership, the Guarantor and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
Section 8. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
8 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities purchased and sold by it hereunder exceeds
the amount of any damages which such Initial Purchaser has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the
21
same rights to contribution as such Initial Purchaser, and each person, if any,
who controls the Partnership or the Guarantor within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Partnership and the Guarantor. The Initial Purchasers'
respective obligations to contribute pursuant to this Section are several in
proportion to the principal amount of the Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Partnership, the Guarantor or any of the
Guarantor's subsidiaries submitted pursuant hereto shall remain operative and in
full force and effect, regardless of (i) any investigation made by or on behalf
of any Initial Purchaser or its affiliates or selling agents, any person
controlling any Initial Purchaser, its officers or directors or any person
controlling the Partnership or the Guarantor and (ii) delivery of and payment
for the Securities.
SECTION 10. Termination of Agreement.
(a) Termination; General. The Representative may terminate this Agreement
by notice to the Guarantor at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Offering Circular (exclusive of
any amendments or supplements thereto subsequent to the date of this Agreement),
any material adverse change in the condition, financial or otherwise, or in the
earnings, business or business prospects of the Guarantor and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, otherwise than as set forth or contemplated in the Offering Circular,
or (ii) if the Guarantor and its subsidiaries shall have sustained since the
date of the latest audited financial statements included in the Offering
Circular any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
(iii) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, the effect of which, in any such
case described in clauses (i) through (iii), is such as to make it, in the
judgment of the Representative, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iv) if
trading in any securities of the Guarantor has been suspended or materially
limited by the Commission or the New York Stock Exchange, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (v) if a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States, or (vi) if a banking moratorium has been declared by either federal or
New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof,
22
and provided further that Sections 1, 7, 8 and 9 shall survive such termination
and remain in full force and effect.
SECTION 11. Default by One or More of the Initial Purchasers. If one or
more of the Initial Purchasers shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Initial Purchasers shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Initial Purchasers, or any other initial purchasers, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Initial Purchasers shall
not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased hereunder, each of
the non-defaulting Initial Purchasers shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Initial Purchasers; or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be purchased hereunder, this Agreement
shall terminate without liability on the part of any non-defaulting Initial
Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Initial Purchasers or the Guarantor shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Offering Circular or in any other
documents or arrangements. As used herein, the term "Initial Purchaser" includes
any person substituted for an Initial Purchaser under this Section.
SECTION 12. No Advisory or Fiduciary Responsibility. Each of the
Partnership and the Guarantor acknowledges and agrees that: (i) the purchase and
sale of the Securities pursuant to this Agreement, including the determination
of the offering price of the Securities and any related discounts and
commissions, is an arm's-length commercial transaction between the Partnership
and the Guarantor, on the one hand, and the several Initial Purchasers, on the
other hand, and the Partnership and the Guarantor are capable of evaluating and
understanding and understand and accept the terms, risks and conditions of the
transactions contemplated by this Agreement; (ii) in connection with each
transaction contemplated hereby and the process leading to such transaction each
Initial Purchaser is and has been acting solely as a principal and is not the
agent or fiduciary of the Partnership, Guarantor or their respective Affiliates,
stockholders, creditors or employees or any other party; (iii) no Initial
Purchaser has assumed or will assume an advisory or fiduciary responsibility in
favor of the Partnership or the Guarantor with respect to any of the
transactions contemplated hereby or the process leading thereto (irrespective of
whether such Initial Purchaser has advised or is currently advising the
Partnership or the Guarantor on other matters) or any other obligation to the
Partner and the Guarantor except the obligations expressly set forth in this
Agreement; (iv) the several Initial Purchasers and their
23
respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Partnership and the Guarantor
and that the several Initial Purchasers have no obligation to disclose any of
such interests by virtue of any fiduciary or advisory relationship; and (v) the
Partnership and the Guarantor have consulted their own legal, financial,
accounting, regulatory, and tax advisors to the extent they deemed appropriate,
and each of the Partnership and the Guarantor agrees that it will not claim that
the Initial Purchasers, or any of them, has rendered advisory services of any
nature or respect, or owes a fiduciary or similar duty to the Partnership or the
Guarantor, in connection with such transaction or the process leading thereto.
This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Partnership, the Guarantor and the several Initial
Purchasers, or any of them, with respect to the subject matter hereof. Each of
the Partnership, the Guarantor and the Initial Purchasers hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
SECTION 13. Consent to Jurisdiction. Any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated
hereby ("Related Proceedings") may be instituted in the federal courts of the
United States of America located in the City and County of New York or the
courts of the State of New York in each case located in the City and County of
New York (collectively, the "Specified Courts"), and each of the Partnership and
the Partners acting on behalf of the Partnership irrevocably submits to the
exclusive jurisdiction (except for suits, actions, or proceedings instituted in
regard to the enforcement of a judgment of any Specified Court in a Related
Proceeding (a "Related Judgment"), as to which such jurisdiction is
non-exclusive) of the Specified Courts in any Related Proceeding. Service of any
process, summons, notice or document by mail to such party's address set forth
in Section 16 hereof shall be effective service of process for any Related
Proceeding brought in any Specified Court. Each of the Partnership and the
Partners acting on behalf of the Partnership irrevocably and unconditionally
waives any objection to the laying of venue of any Specified Proceeding in the
Specified Courts and irrevocably and unconditionally waives and agrees not to
plead or claim in any Specified Court that any Related Proceeding brought in any
Specified Court has been brought in an inconvenient forum. Each of the
Partnership and the Partners acting on behalf of the Partnership irrevocably
appoints Corporation Service Company, as its agent to receive service of process
or other legal summons for purposes of any Related Proceeding that may be
instituted in any Specified Court.
SECTION 14. Waiver of Immunity. With respect to any Related Proceeding,
each of the Partnership and the Partners acting on behalf of the Partnership
waives, to the fullest extent permitted by applicable law, all immunity (whether
on the basis of sovereignty or otherwise) from jurisdiction, service of process,
attachment (both before and after judgment) and execution to which it might
otherwise be entitled in the Specified Courts, and with respect to any Related
Judgment, each of the Partnership and the Partners acting on behalf of the
Partnership waives any such immunity in the Specified Courts or any other court
of competent jurisdiction, and will not raise or claim or cause to be pleaded
any such immunity at or in respect of any such Related Proceeding or Related
Judgment, including, without limitation, any immunity pursuant to the United
States Foreign Sovereign Immunities Act of 1976, as amended.
24
SECTION 15. Judgment Currency. If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due hereunder into any currency other
than U.S. dollars, the Partnership, the Guarantor and the Initial Purchasers
hereto agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Initial Purchasers could purchase U.S. dollars with such
other currency in The City of New York on the business day preceding that on
which final judgment is given. The obligations of the Partnership and the
Guarantor in respect of any sum due from it to any Initial Purchaser shall,
notwithstanding any judgment in any currency other than U.S. dollars, not be
discharged until the first business day, following receipt by such Initial
Purchaser of any sum adjudged to be so due in such other currency, on which (and
only to the extent that) such Initial Purchaser may in accordance with normal
banking procedures purchase U.S. dollars with such other currency; if the U.S.
dollars so purchased are less than the sum originally due to such Initial
Purchaser hereunder, the Partnership and the Guarantor agree, as a separate
obligation and notwithstanding any such judgment, to indemnify such Initial
Purchaser against such loss. If the U.S. dollars so purchased are greater than
the sum originally due to such Initial Purchaser hereunder, such Initial
Purchaser agrees to pay to the Partnership and the Guarantor an amount equal to
the excess of the U.S. dollars so purchased over the sum originally due to such
Initial Purchaser hereunder.
SECTION 16. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication.
Notices to the Initial Purchasers shall be directed to:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Registration Department
With a copy to:
Shearman & Sterling LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: Abigail Arms
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Notices to the Partnership, the Partners or the Guarantor shall be directed
to:
RPM International Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
25
▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 17. Parties. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers, each of the Partnership, the Guarantor and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Initial Purchasers, the Partnership, the Guarantor and their respective
successors and the controlling persons referred to in Sections 7 and 8 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Initial Purchasers, the Partnership, the
Guarantor and their respective successors, and said controlling persons and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Securities from the Initial Purchasers
shall be deemed to be a successor by reason merely of such purchase.
SECTION 18. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 19. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
26
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Guarantor a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Initial Purchasers, the Partnership by the Partners as its general partners
and in its name and the Guarantor in accordance with its terms.
Very truly yours,
RPM Canada Investment Company, as a
general partner in RPM United Kingdom
G.P.
By: /s/ P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary
RPM Canada (registered name), as a
general partner in RPM United Kingdom
G.P.
By: /s/ P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary
Guaranteed by:
RPM INTERNATIONAL INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Chief Financial Officer
and Controller
Accepted as of the date hereof:
▇▇▇▇▇▇▇, SACHS & CO.
Acting severally on behalf of
themselves and the several Initial
Purchasers named in Schedule A
hereto
By: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
---------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
RPM 2005 - PURCHASE AGREEMENT
SCHEDULE A
LIST OF INITIAL PURCHASERS
Name of Initial Purchaser Principal Amount of Notes
------------------------- -------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.................................................. $105,000,000
Banc of America Securities LLC....................................... 13,500,000
KeyBanc Capital Markets, a division of McDonald Investments Inc...... 13,500,000
Wachovia Capital Markets, LLC........................................ 13,500,000
LaSalle Financial Services, Inc...................................... 4,500,000
------------
Total............................................................. $150,000,000
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇-▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ G.P.
by
RPM CANADA and RPM CANADA INVESTMENT COMPANY
as its general partners, and in its name
6.70% SENIOR NOTES DUE 2015
1. The initial offering price per $1,000 principal amount of the Notes
shall be $999.04.
2. The purchase price to be paid by the Initial Purchasers for the Notes
shall be $992.54 per $1,000 principal amount of Notes, being an amount equal to
the initial offering price set forth in paragraph 1 above, less $6.50 per $1,000
principal amount of Notes.
3. Cash interest on the Notes will be payable semi-annually in arrears on
May 1 and November 1 of each year, beginning May 1, 2006. The Notes will accrue
interest from November 1, 2005.
4. The Notes are redeemable at any time and from time to time at a
redemption price equal to the greater of 100% of the principal amount of Notes
being redeemed and the "make-whole amount" described in the Final Offering
Circular.
SCH B-1
SCHEDULE C
LIST OF MATERIAL SUBSIDIARIES
Corporate Material Subsidiaries Jurisdiction of Incorporation
------------------------------- -----------------------------
RPM, Inc......................... Ohio
RPM Industrial Holding Company... Delaware
RPM Consumer Holding Company..... Delaware
RPM Holdco Corp.................. Delaware
Rust-Oleum Corporation........... Illinois
Tremco Incorporated.............. Ohio
DAP Products Inc................. Delaware
RPM Canada Company............... Nova Scotia
Other Material Subsidiaries Jurisdiction of Incorporation
--------------------------- -----------------------------
RPM Canada ...................... Ontario
RPM Canada Investment Company.... Nova Scotia
SCH C-1
EXHIBIT A
[Intentionally left blank]
Exhibit A-1
EXHIBIT B
FORM OF OPINION OF BLAKE, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
CANADIAN AND ONTARIO COUNSEL OF THE PARTNERS,
TO BE DELIVERED PURSUANT TO SECTION 5(a)
1. Relying solely on the registration under the Business Names Act (Ontario),
the Officer's Certificate and the Canadian Partnership Agreement, RPM
Canada is a general partnership formed and existing under the Partnerships
Act (Ontario).
2. All necessary action has been taken under or as required by the provisions
of the Canadian Partnership Agreement to authorize the execution and
delivery of the U.K. Partnership Agreement by RPM Canada.
3. All necessary action has been taken under or as required by the Canadian
Partnership Agreement to authorize the execution and delivery of the
Purchase Agreement, the Notes and the Indenture by RPM Canada in its
capacity as one of the partners in the U.K. Partnership and, with respect
to the Indenture, in its capacity as an Ontario partnership.
4. The Canadian Partnership Agreement, is a legal, valid and binding
obligation of each of the parties thereto enforceable against each of such
parties by each other party thereto in accordance with its terms.
5. The U.K. Partnership Agreement has been duly executed and delivered by RPM
Canada, in its capacity as a partner in the U.K. Partnership, in accordance
with the provisions of the Canadian Partnership Agreement, to the extent
that the laws of the Province of Ontario govern such execution and delivery
(such execution and physical delivery having been effected outside of the
Province of Ontario).
6. Each of the Purchase Agreement, the Notes and the Indenture has been duly
executed and delivered by RPM Canada, in its capacity as a partner in the
U.K. Partnership in the case of the Purchase Agreement and the Notes and in
both of its capacity as a partner in the U.K. Partnership Agreement and in
its capacity as an Ontario partnership in the case of Article 13 of the
Indenture, in accordance with the provisions of the Canadian Partnership
Agreement, to the extent that the laws of Ontario govern such execution and
delivery (such execution and physical delivery having been effected outside
of the Province of Ontario).
7. The execution and delivery by RPM Canada of the Purchase Agreement, the
Notes and the Indenture, in its capacity as a partner in the U.K.
Partnership in the case of the Purchase Agreement and the Notes and in both
its capacity as a partner in the U.K. Partnership and in its capacity as an
Ontario partnership in the case of Article 13 of the Indenture, and the
performance by RPM Canada of its obligations under Article 13 of the
Indenture, will not result in a breach of, or constitute a default under
(a) any statute or regulation of the Province of Ontario or any federal
statute or regulation of Canada applicable in Ontario, or (b) the Canadian
Partnership Agreement.
Exhibit B-1
8. The choice of the laws of New York ("New York Law") as the governing law of
the Indenture, the Notes, and the Purchase Agreement (the "New York
Documents") will be upheld as a valid choice of law by a court of the
Province of Ontario (an "Ontario Court"), provided that in each case such
choice of law is bona fide (in the sense that it was not made with a view
to avoiding the consequences of the law of any other jurisdiction) and
provided that in each case such choice of law is not contrary to public
policy, as that term is understood under the laws of the Province of
Ontario and the federal laws of Canada applicable in such Province
("Ontario Law"). To our knowledge, there are no reasons under present
Ontario Law that the choice of New York Law as the governing law of the New
York Documents would be contrary to public policy, as that term is
understood under Ontario Law.
9. In any proceeding undertaken in an Ontario Court to enforce or interpret
the New York Documents, an Ontario Court would, subject to paragraph 8, to
the extent New York Law is pleaded and proved, enforce the applicable New
York Document in accordance with New York Law, but only with respect to
those matters which under Ontario Law are to be determined by the proper
law of the New York Document (and in particular, but without limitation,
not with respect to matters of procedure or property interests or security
interests that under Ontario Law are to be determined by a law other than
the proper law of the applicable New York Document); provided, however,
that none of the provisions of the New York Documents or of New York Law is
contrary to public policy, as such term is understood under Ontario Law.
However, an Ontario Court will retain discretion to decline to hear such
action if it is contrary to public policy (as that term is understood under
Ontario Law) for it to hear such action, or if it is not the proper forum
to hear such an action, or if the proceedings in respect of the same cause
of action are being brought elsewhere.
10. An Ontario Court would enforce a final, conclusive and subsisting judgment
in personam of any New York court of competent jurisdiction (a "New York
Court") which is not impeachable as void or voidable under New York Law
enforcing the rights of holders of the Notes and the purchaser under the
Purchase Agreement, under the New York Documents, as against the U.K.
Partnership if:
(a) the judgment was for a sum certain in money;
(b) the New York Court had jurisdiction over the subject matter and the
judgment debtor, as recognized by Ontario Courts and the New York
Court;
(c) the foreign judgment and the proceedings leading thereto did not
involve the breach of and was not otherwise contrary to natural
justice, including the fundamental right of a person to be heard
fairly;
(d) the enforcement of the judgment would be consistent with Ontario Law
and would not be contrary to public policy, as that term is understood
under Ontario Law;
Exhibit B-2
(e) no new admissible evidence, right or defense relevant to the action
accrues or is discovered prior to the rendering of judgment by an
Ontario Court;
(f) there has been compliance with the limitations period (if any) of
Ontario Law requiring that an action be commenced in Ontario within a
specified period of the date of such judgment in New York; and
(g) the enforcement of the judgment does not constitute, directly or
indirectly, the enforcement of foreign revenue, expropriatory, penal
or similar laws.
11. Under the Tax Act, the payment by the U.K. Partnership of interest,
principal or premium (if any) on the Notes to a Non-Resident Holder that
deals at arm's length with the U.K. Partnership, RPM Canada and the
Partners for the purposes of the Tax Act will be exempt from Canadian
withholding tax. A Non-Resident Holder will not be subject to tax under the
Tax Act in respect of a gain realized upon the disposition or deemed
disposition of the Notes (including, on a sale, redemption, repurchase,
retirement or payment on maturity).
12. The statements in the Offering Circular under the caption "Certain Canadian
and Federal Income Tax Considerations" constitute a fair summary of the
principal Canadian federal income tax considerations generally applicable
to Holders addressed therein.
Exhibit B-3
EXHIBIT C
FORM OF OPINION OF P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
GENERAL COUNSEL OF THE GUARANTOR,
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Guarantor is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which its ownership or
lease of property or the conduct of its businesses require such qualification
and has all power and authority necessary to own or hold its properties and
conduct the businesses in which it is engaged, except where the failure to be so
qualified or to be in good standing as a foreign corporation have not had and
would not, singularly or in the aggregate, reasonably be expected to have a
Material Adverse Effect;
(ii) Each of RPM, Inc., RPM Industrial Holding Company, RPM Consumer
Holding Company, RPM Holdco Corp., Rust-Oleum Corporation, Tremco Incorporated
and DAP Products Inc. (each a "Domestic Material Subsidiary" and, collectively,
the "Domestic Material Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification and has all
power and authority necessary to own or hold its properties and conduct the
business in which its is engaged, except where the failure to be so qualified or
to be in good standing as a foreign corporation has not and would not,
singularly or in the aggregate, reasonably be expected to have a Material
Adverse Effect;
(iii) All of the issued shares of capital stock of each Domestic
Material Subsidiary have been duly and validly authorized and issued and are
fully paid and non-assessable and are owned directly or indirectly by the
Guarantor, free and clear of all liens, encumbrances, equities or claims;
(iv) To the best of my knowledge after due inquiry and other than as
set forth in the Offering Circular, there are no legal or governmental
proceedings pending to which the Guarantor or any of its subsidiaries is a party
or of which any property or assets of the Guarantor or any of its subsidiaries
is the subject which, if determined adversely to the Guarantor or any of its
subsidiaries, singularly or in the aggregate, might have a Material Adverse
Effect; and, to the best of my knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(v) The statements contained in the Offering Circular under the
captions "Business--Environmental Matters," "Business--Legal Proceedings," "Risk
Factors--The chemical and construction products industries in which we serve
expose us to inherent risks of claims and other litigation-related costs, which
could adversely impact our business," "Risk Factors--Certain of our
subsidiaries, principally Bondex International, Inc., are defendants in numerous
asbestos-related personal injury lawsuits.
Exhibit C-1
Resolutions of existing and future asbestos related lawsuits may have a material
and adverse effect on our future consolidated financial condition, operating
results and liquidity," "Risk Factors--Environmental laws and regulations could
subject us to significant future expenditures or liabilities, which could have
an adverse impact on our business" and "Item 13. Certain Relationships and
Related Transactions" (incorporated by reference to the Guarantor's Annual
Report on Form 10-K for the year ended May 31, 2005) insofar as they describe
charter documents, contracts, legal proceedings, federal and state statutes,
rules and regulations, constitute a fair summary thereof;
(vi) The issue and sale of the Securities and the execution, delivery
and compliance by the Guarantor with all of the provisions of the Purchase
Agreement, the Indenture and the Guarantee and the consummation of the
transactions contemplated thereby do not and will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
similar agreement or instrument to which the Guarantor or any of its Material
Subsidiaries is a party or by which the Guarantor or any of its Material
Subsidiaries is bound or to which any of the properties or assets of the
Guarantor or any of its Material Subsidiaries is subject, (except for such
conflicts, breaches or violations that, singly or in the aggregate, would not
result in a Material Adverse Effect), nor will such actions result in any
violation of the provisions of the charter or by-laws of the Guarantor or any of
its Material Subsidiaries or any statute or any order, rule or regulation known
to me of any court or governmental agency or body having jurisdiction over the
Guarantor or any of its Material Subsidiaries or any of their properties or
assets;
(vii) Neither the Guarantor nor any of its Material Subsidiaries is in
violation of its charter or by-laws or other constituting or organizational
document; and
(viii) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Guarantor or any of its
subsidiaries (or, to the knowledge of the Guarantor, any of their predecessors
in interest) at, upon or from any of the property now or previously owned or
leased by the Guarantor or its subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial action
which would not have, or could not be reasonably likely to have, singularly or
in the aggregate with all such violations and remedial actions, a Material
Adverse Effect; there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical wastes, solid
wastes, hazardous wastes or hazardous substances due to or caused by the
Guarantor or any of its subsidiaries or with respect to which the Guarantor or
any of its subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which have not had and
would not be reasonably likely to have, singularly or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a Material Adverse Effect.
Exhibit C-2
EXHIBIT D
FORM OF OPINION OF ▇▇▇▇▇▇, HALTER & ▇▇▇▇▇▇▇▇ LLP,
U.S. COUNSEL FOR THE PARTNERS AND THE GUARANTOR,
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware;
(ii) The documents incorporated by reference into the Offering
Circular (except for the financial statements and the notes thereto, the
financial statement schedules and other financial data included therein, as
to which we express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of the
1934 Act and the 1934 Act Regulations;
(iii) The statements contained in the Offering Circular under the
captions "Description of Securities," "Description of Our Other
Indebtedness," "Underwriting" and "Certain U.S. Federal Income Tax
Considerations," insofar as they describe charter documents, contracts,
legal proceedings, federal and state statutes, rules and regulations and
other legal matters, constitute a fair summary thereof (except for
descriptions and summaries of partnership and other laws of the United
Kingdom and Canada, including the laws of the provinces of Ontario and Nova
Scotia, as to which we express no opinion);
(iv) The Purchase Agreement and the Indenture have each been duly
authorized, executed and delivered by the Guarantor;
(v) The Purchase Agreement, the Indenture and the Notes have been
executed and delivered by the Partners;
(vi) The Indenture constitutes a valid and binding agreement of
the Guarantor and each of the Partners, enforceable against the Guarantor
and each of the Partners in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium, or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law);
(vii) The Guarantee is in the form contemplated by the Indenture,
has been duly authorized, executed, issued and delivered by the Guarantor
and, when authenticated by the Trustee in the manner provided in the
Indenture, will constitute a valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium, or similar laws affecting enforcement of
creditors' rights generally and
Exhibit D-1
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(viii) The Notes are in the form contemplated by the Indenture,
have been executed, issued and delivered by the Partners on behalf of the
Partnership and, when authenticated by the Trustee in the manner provided
in the Indenture, will constitute valid and binding obligations of each of
the Partners, enforceable against each of the Partners in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium, or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law);
(ix) The issue and sale of the Securities and the execution,
delivery and performance by the Partnership and the Guarantor with all of
the provisions of the Purchase Agreement, the Indenture, the Guarantee and
the Notes, and the consummation of the transactions contemplated thereby do
not and will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
filed or incorporated by reference as an exhibit to any of the documents
incorporated by reference into the Offering Circular, nor will such actions
result in any violation of the provisions of the Amended and Restated
Certificate of Incorporation or Amended and Restated By-Laws of the
Guarantor; and no consent, approval, authorization or order of, or filing
or registration with, any court or governmental agency or body is required
for the execution, delivery and performance of the Purchase Agreement or
the Indenture or the consummation of the transactions contemplated thereby,
except for such consents, approvals, authorizations, orders, filings or
registrations as have been obtained;
(x) It is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers and each Subsequent
Purchaser in the manner contemplated by the Purchase Agreement and the
Offering Circular to register the Securities under the 1933 Act or to
qualify the Indenture under the 1939 Act;
(xi) Each of the Partnership, the Partners and the Guarantor is
not, and as of the Closing Time after giving effect to the offering and
sale of the Securities and the application of the net proceeds therefrom
will not be, an "investment company" as defined in the Investment Company
Act of 1940, as amended; and
(xii) The Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the Offering Circular.
We have participated in conferences with officers and other representatives
of the Guarantor, representatives of the independent public accountants for the
Guarantor, representatives of the Initial Purchasers, special United Kingdom and
Canadian counsel for the Partners and the Guarantor, and counsel for the Initial
Purchasers, at which the contents of the Offering Circular and related matters
were discussed. However, except as otherwise stated
Exhibit D-2
herein, we have not independently checked the accuracy or completeness of, or
otherwise verified, any statements of fact contained in the Offering Circular.
We also reviewed the Offering Circular, the Indenture, the Purchase Agreement,
the Notes, the Guarantee and certificates of certain officers of the Guarantor,
opinions of the General Counsel for the Guarantor and letters from the
Guarantor's independent public accountants. On the basis of the information that
we gained during the course of performing the services referred to above,
nothing has come to our attention that would lead us to believe that the
Offering Circular, as of the date of the Offering Circular or at the Closing
Time (except as to the financial statements and the notes thereto, the financial
statement schedules and other financial data included or incorporated by
reference therein, as to all of which we express no belief) contained or
contains an untrue statement of material fact or omitted or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Exhibit D-3
EXHIBIT E
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
CANADIAN AND NOVA SCOTIA COUNSEL OF THE PARTNERS,
TO BE DELIVERED PURSUANT TO SECTION 5(a)
1. RPMCanCo is an unlimited company duly amalgamated, organized and validly
existing under the laws of the Province of Nova Scotia, and has all
necessary corporate power and authority to own and lease its property and
assets and carry on its business, and to enter into and perform its
obligations under the Documents to which it is a party or the obligations
in the Documents for which it is responsible as a partner in RPM Canada.
2. RPMCIC is an unlimited company duly incorporated, organized and validly
existing under the laws of the Province of Nova Scotia, and has all
necessary corporate power and authority to own and lease its property and
assets and carry on its business, and to enter into and perform its
obligations under the Documents to which it is a party or the obligations
in the Documents for which it is responsible as a partner in RPM Canada or
as a partner in the U.K. Partnership.
3. RPM Canada is registered to do business in Nova Scotia under the
Partnerships and Business Names Registration Act (Nova Scotia)
4. All necessary action has been taken by each of RPMCanCo and RPMCIC, in its
capacity as a partner in RPM Canada, to authorize the execution and
delivery of the U.K. Partnership Agreement by RPM Canada.
5. RPMCIC has the corporate power to execute, deliver and perform its
obligations under the U.K. Partnership Agreement and has taken all
necessary corporate action to authorize the execution, delivery and
performance of its obligations under the U.K. Partnership Agreement.
6. All necessary action has been taken by each of RPMCanCo and RPMCIC, in its
capacity as a partner in RPM Canada, to authorize the execution and
delivery of the Purchase Agreement and the Notes in its capacity as a
partner in the UK Partnership and the Indenture by RPM Canada both in its
capacity as a partner in the U.K. Partnership and in its capacity as a
partnership.
7. All necessary action has been taken by RPMCIC, in its capacity as a partner
in the U.K. Partnership, to authorize the execution and delivery of the
Purchase Agreement, the Notes and the Indenture by RPMCIC.
8. RPMCIC has the corporate power to execute, deliver and perform its
obligations under Article 13 of the Indenture and has taken all corporate
action necessary to authorize the execution, delivery and performance of
its obligations under the Indenture.
Exhibit E-1
9. The U.K. Partnership Agreement has been duly executed and delivered by
RPMCIC, in its capacity as a partner in the U.K. Partnership, to the extent
that the laws of the Province of Nova Scotia govern such execution and
delivery (such execution and physical delivery having been effected outside
of the Province of Nova Scotia).
10. Each of the Purchase Agreement, the Notes and the Indenture has been duly
executed and delivered by RPMCIC, in its capacity as a partner in the U.K.
Partnership in the case of the Purchase Agreement and the Notes and in both
its capacity as a partner in the U.K. Partnership Agreement and in its
capacity as a Nova Scotia unlimited company in the case of Article 13 of
the Indenture, to the extent that the laws of Nova Scotia govern such
execution and delivery (such execution and physical delivery having been
effected outside of the Province of Nova Scotia).
11. The execution and delivery by each of RPMCanCo and RPMCIC of, and the
performance by each of them of the obligations of the U.K Partnership
under, the Purchase Agreement, the notes and the Indenture, in each case in
its capacity as a partner in RPM Canada, and in turn in RPM Canada's
capacity as a partner in the U.K. Partnership, will not result in a breach
of, or constitute a default under
(a) any statue or regulation of the Province of Nova Scotia or any federal
statute or regulation of Canada applicable in Nova Scotia;
(b) the terms of the Memorandum of Association or Articles of Association
or resolutions of the directors or shareholders of either of RPMCanCo
or RPMCIC; or
(c) the Canadian Partnership Agreement.
12. The execution and delivery by RPMCIC of, and the performance by it of the
obligations of the U.K Partnership under, the Purchase Agreement, the Notes
and the Indenture, in each case in its capacity as a partner in the U.K.
Partnership, and in the case of the Indenture only, in RPMCIC's capacity as
a corporation, and the performance by RPMCIC of its obligations under
Article 13 of the Indenture will not result in a breach of, or constitute a
default under
(a) any statue or regulation of the Province of Nova Scotia or any federal
statute or regulation of Canada applicable in Nova Scotia;
(b) the terms of the Memorandum of Association or Articles of Association
or resolutions of the directors or shareholders of either of RPMCanCo
or RPMCIC; or
(c) the Canadian Partnership Agreement.
13. No authorization, consent or approval of, exemption from, declaration by,
qualification with, or giving of notice to, any regulatory or governmental
bodies having jurisdiction
Exhibit E-2
over either of RPMCanCo or RPMCIC is required in connection with the issue
and sale of the Notes by RPMCanCO or RPMCIC in their capacities as partners
in RPM Canada, and in turn in RPM Canada's capacity as a partner in the
U.K. Partnership.
14. No authorization, consent or approval of, exemption from, declaration by,
qualification with, or giving of notice to, any regulatory or governmental
bodies having jurisdiction over RPMCIC is required in connection with the
issue and sale of the Notes by RPMCIC in its capacity as a partner in the
UK partnership.
15. The choice of the laws of New York ("New York Law") as the governing law of
the Indenture, the Notes and the Purchase Agreement (the "New York
Documents") will be upheld as a valid choice of law by the courts of the
Province of Nova Scotia (a "Nova Scotia Court"), provided that in each case
such choice of law is bona fide (in the sense that it was not made with a
view to avoiding the consequences of the law of any other jurisdiction) and
provided that in each case such choice of law is not contrary to public
policy, as that term is understood under the laws of the Province of Nova
Scotia and the federal laws of Canada applicable in such Province ("Nova
Scotia Law"). To our knowledge, there are no reasons under present Nova
Scotia Law that the choice of New York Law as the governing law of the New
York Documents would be contrary to public policy, as that term is
understood under Nova Scotia Law.
16. In any proceeding undertaken in a Nova Scotia Court to enforce or interpret
the New York Documents, a Nova Scotia Court would, subject to paragraph 15,
to the extent New York Law is pleaded and proved, enforce the applicable
New York Document in accordance with New York Law, but only with respect to
those matters which under Nova Scotia Law are to be determined by the
proper law of the New York Document (and in particular, but without
limitation, not with respect to matters of procedure or property interests
or security interests that under Nova Scotia Law are to be determined by a
law other than the proper law of the applicable New York Document);
provided, however, that none of the provisions of the New York Documents or
of New York Law is contrary to public policy, as such term is understood
under Nova Scotia Law. However, a Nova Scotia Court will retain discretion
to decline to hear such action if it is contrary to public policy (as that
term is understood under Nova Scotia Law) for it to hear such action, or if
it is not the proper forum to hear such an action, or if the proceedings in
respect of the same cause of action are being brought elsewhere.
17. A Nova Scotia Court would enforce a final, conclusive and subsisting
judgment in personam of any New York Court of competent jurisdiction (a
"New York Court") which is not impeachable as void or voidable under New
York Law enforcing the rights of holders of the Notes and the purchaser
under the Purchase Agreement, under the New York Documents, as against the
U.K. Partnership if:
(a) the judgment was for a sum certain in money;
(b) the New York Court had jurisdiction over the subject matter and the
judgment debtor, as recognized by Nova Scotia Courts and the New York
Court;
Exhibit E-3
(c) the foreign judgment and the proceedings leading thereto did not
involve the breach of and was not otherwise contrary to natural
justice, including the fundamental rights of a person to be heard
fairly;
(d) the enforcement of the judgment would be consistent with Nova Scotia
Law and would not be contrary to public policy, as that term is
understood under Nova Scotia Law;
(e) no new admissible evidence, right or defence relevant to the action
accrues or is discovered prior to the rendering of judgment by an Nova
Scotia Court;
(f) there has been compliance with the limitations period (if any) of Nova
Scotia Law requiring that an action be commenced in Nova Scotia within
a specified period of the date of such judgment in New York; and
(g) the enforcement of the judgment does not constitute, directly or
indirectly, the enforcement of foreign revenue, expropriatory, penal
or similar laws.
Exhibit E-4
