Registration No. 333-                

As filed with the Securities and Exchange Commission on July 30, 2020

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

RPM INTERNATIONAL INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   02-0642224
(State or other jurisdiction of
incorporation or organization)
  (I.R.S. Employer
Identification No.)

P.O. Box 777, 2628 Pearl Road, Medina, Ohio

(Address of Principal Executive Offices)

 

44258

(Zip Code)

Amended and Restated RPM International Inc. 2014 Omnibus Equity and Incentive Plan

(Full title of the plan)

Edward W. Moore, Esq.

Senior Vice President, General Counsel, Chief Compliance Officer and Secretary

2628 Pearl Road

P.O. Box 777

Medina, Ohio 44258

(Name and address of agent for service)

(330) 273-5090

(Telephone number, including area code, of agent for service)

 

 

Copies to:

Gregory S. Harvey, Esq.

Calfee, Halter & Griswold LLP

The Calfee Building

1405 East Sixth Street

Cleveland, Ohio 44114

Tel. No. (216) 622-8200

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check One):

 

Large accelerated filer

 

    

Accelerated filer

 

Non-accelerated filer

 

  

(Do not check if a smaller reporting company)

 

Smaller reporting company

 

      

Emerging growth company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.

 

 

CALCULATION OF REGISTRATION FEE

 

Title of securities

to be registered

 

Amount

to be

registered (1)

 

Proposed

maximum

offering price

per share (2)

 

Proposed

maximum

aggregate

offering price

 

Amount of

registration fee

Common Stock, par value
$0.01 per share
  5,000,000 shares   $79.01   $395,050,000   $51,278
(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), there are also being registered such additional shares of common stock, par value $0.01 per share (the “Common Stock”) that may be issued or become issuable under the terms of the Amended and Restated RPM International Inc. 2014 Omnibus Equity and Incentive Plan (the “Plan”) in order to prevent dilution by reason of any stock dividend, stock split, recapitalization or other similar transaction. In addition, pursuant to Rule 416(c) under the Securities Act, this registration statement also covers an indeterminate number of plan participation interests to be offered or sold pursuant to the Plan. Further, in accordance with Rule 457(h)(2) under the Securities Act, no separate fee calculation is required for the registration of plan participation interests. A total of 5,000,000 shares of Common Stock are being registered for the Plan.

(2)

Estimated in accordance with Rule 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration fee and based upon the average of the high and low prices of the Common Stock reported on the New York Stock Exchange on July 24, 2020.


EXPLANATORY NOTE

This registration statement is being filed to register the issuance of an additional 5,000,000 shares of Common Stock that may be issued pursuant to the Plan, plus any additional securities that become issuable under the Plan by reason of any stock splits, stock dividends or recapitalizations or other similar transactions.

RPM International, Inc. (the “Registrant”) previously registered shares of Common Stock for issuance under the Plan on a registration statement on Form S-8 filed with the Securities and Exchange Commission (the “SEC”) on April 14, 2015 (File No. 333-203406) (6,000,000 shares of Common Stock). Pursuant to General Instruction E to Form S-8 and with respect to the additional shares of Common Stock registered hereunder for issuance under the Plan, the contents of such registration statements, including all exhibits thereto as applicable, are incorporated herein by reference.

 

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PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The Registrant will send or give to all participants in the Plan documents containing the information required by Part I of Form S-8, as specified in Rule 428(b)(1) promulgated by the SEC under the Securities Act. In accordance with Rule 428, the Registrant has not filed such documents with the SEC, but such documents (along with the documents incorporated by reference into this Form S-8 Registration Statement (the “Registration Statement”) pursuant to Item 3 of Part II hereof) shall constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3

Incorporation of Documents by Reference.

Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, the Registrant hereby incorporates by reference into this Registration Statement the following documents:

 

  (a)

the Registrant’s Annual Report on Form 10-K for the fiscal year ended May 31, 2020;

 

  (b)

the Registrant’s Current Report on Form 8-K filed on June 11, 2020; and

 

  (c)

the description of our Common Stock filed as Exhibit 4.10 to our Annual Report on Form 10-K for the fiscal year ended May 31, 2020, together with any amendment or report filed with the SEC for the purpose of updating such description.

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and all reports on Form 8-K subsequent to the date hereof and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold, or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the dates of filing of such documents, other than the portions of such documents that, by statute or rule, by designation in such document or otherwise, are not deemed to be filed with the SEC or are not required to be incorporated herein by reference.

Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4.

Description of Securities.

A description of the Common Stock is incorporated herein by reference. See Item 3.

 

Item 5.

Interests of Named Experts and Counsel.

Not applicable.

 

Item 6.

Indemnification of Directors and Officers.

Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) sets forth the conditions and limitations governing the indemnification of officers, directors and other persons. Section 145 provides that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that

 

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the person is or was a director, officer, employee or agent of the corporation or was serving at the request of the corporation in a similar capacity with another corporation or other entity, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement incurred in connection therewith if the person acted in good faith and in a manner that the person reasonably believed to be in the best interests of the corporation. With respect to a suit by or in the right of the corporation, indemnity may be provided to the foregoing persons under Section 145 on a basis similar to that set forth above, except that no indemnity may be provided in respect of any claim, issue or matter as to which such person has been adjudged to be liable to the corporation unless and to the extent that the Delaware Court of Chancery or the court in which such action, suit or proceeding was brought determines that despite the adjudication of liability, but in view of all the circumstances of the case, such person is entitled to indemnity for such expenses as the court deems proper. Moreover, Section 145 provides for mandatory indemnification of a director, officer, employee or agent of the corporation to the extent that such person has been successful in defense of any such action, suit or proceeding and provides that a corporation may pay the expenses of an officer or director in defending an action, suit or proceeding upon receipt of an undertaking to repay such amounts if it is ultimately determined that such person is not entitled to be indemnified. Section 145 establishes provisions for determining that a given person is entitled to indemnification, and also provides that the indemnification provided by or granted under Section 145 is not exclusive of any rights to indemnity or advancement of expenses to which such person may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise.

Section 102(b)(7) of the DGCL permits corporations to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of the director’s duty of care. Specifically, this section provides that a director of a corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. Accordingly, Article VIII of the Registrant’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) provides that to the full extent permitted by the DGCL, no director of the Registrant will be personally liable to the Registrant or its stockholders for or with respect to any acts or omissions in the performance of his or her duties as a director of the Registrant.

Article IX of the Certificate of Incorporation provides in part that the Registrant shall indemnify any director or officer who was or is a party or is threatened to be made a party to, or is involved in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the Registrant, or is or was serving at the request of the Registrant, as a director, officer, employee or agent of certain other entities, against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such person in connection with such action, suit or proceeding.

Both the DGCL and Article IX of the Certificate of Incorporation provide that the Registrant may maintain insurance to cover losses incurred pursuant to liability of directors and officers of the Registrant. The Registrant has purchased a Directors and Officers Liability Insurance Policy, which insures the directors and officers against certain liabilities that might arise in connection with their respective positions with the Registrant.

The Registrant has entered into Indemnification Agreements with each of its directors and officers providing for additional indemnification protection beyond that provided by the Directors and Officers Liability Insurance Policy. In the Indemnification Agreements, the Registrant has agreed, subject to certain exceptions, to indemnify and hold harmless the director or officer to the maximum extent then authorized or permitted by the provisions of the Certificate of Incorporation, the DGCL, or by any amendment(s) thereto.

 

Item 7.

Exemption from Registration Claimed.

Not applicable.

 

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Item 8.

Exhibits.

Unless otherwise indicated below as being incorporated by reference to another filing of the Registrant with the SEC, each of the following exhibits is filed herewith:

 

Exhibit
Number

  

Description

4.1    Amended and Restated Certificate of Incorporation of the Company, which is incorporated herein by reference to Exhibit  4.1 to the Company’s Registration Statement on Form S-8 (File No. 333-101501), as filed with the SEC on November 27, 2002.
4.2    Amended and Restated By-Laws of the Company, which are incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-14187), as filed with the SEC on April 27, 2009.
4.3    Form of Specimen Certificate for Common Stock, which is incorporated herein by reference to Exhibit 4.3 to the Company’s Registration Statement on Form S-8 (Registration No. 333-101501), as filed with the SEC on November 27, 2002.
4.4    Amended and Restated RPM International Inc. 2014 Omnibus Equity and Incentive Plan, which is incorporated herein by reference to Appendix B to the Company’s Definitive Proxy Statement (File No. 001-14187), as filed with the SEC on August 27, 2019.
5.1    Opinion of Calfee, Halter & Griswold LLP (filed herewith).
23.1    Consent of Deloitte & Touche LLP (filed herewith).
23.2    Consent of Calfee, Halter & Griswold LLP (included in Exhibit 5.1 of this Registration Statement).
24.1    Powers of Attorney (included on the signature page of this Registration Statement) (filed herewith).

 

Item 9.

Undertakings.

 

  (a)

The undersigned Registrant hereby undertakes:

 

  (1)

To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

  (i)

to include any prospectus required by Section 10(a)(3) of the Securities Act;

 

  (ii)

to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

  (iii)

to include any material information with respect to the plans of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

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  (2)

That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

  (3)

To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

  (b)

The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

  (h)

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cleveland, State of Ohio on July 30, 2020.

 

   RPM INTERNATIONAL INC.
By:    /s/ Frank C. Sullivan
   Frank C. Sullivan
   Chairman and Chief Executive Officer

POWER OF ATTORNEY AND SIGNATURES

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, hereby constitutes and appoints Frank C. Sullivan, Russell L. Gordon, and Edward W. Moore, or any one of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution for him or her in his or her name, place and stead, in any and all capacities, to sign any or all amendments or post-effective amendments to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, or any of them, full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters and hereby ratifying and confirming all that each of such attorneys-in-fact and agents or his or her substitute or substitutes may do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on the 30th day of July, 2020.

 

Signature

 

Title

/s/ Frank C. Sullivan                                                 

Frank C. Sullivan

 

Chairman, President, Chief Executive Officer and a Director
(Principal Executive Officer)

/s/ Russell L. Gordon                                                

Russell L. Gordon

 

Vice President and Chief Financial Officer (Principal Financial Officer)

/s/ Keith R. Smiley                                                   

Keith R. Smiley

 

Vice President-Finance and Controller (Principal Accounting Officer)

/s/ Kirkland B. Andrews                                              Director
Kirkland B. Andrews  
/s/ John M. Ballbach                                                    Director
John M. Ballbach  
/s/ Bruce A. Carbonari                                                 Director
Bruce A. Carbonari  
/s/ David A. Daberko                                                   Director
David A. Daberko  
/s/ Jenniffer D. Deckard                                               Director
Jenniffer D. Deckard  

 

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/s/ Salvatore D. Fazzolari                                         

  Director

Salvatore D. Fazzolari

 

/s/ Thomas S. Gross                                                  

  Director

Thomas S. Gross

 

/s/ Julie A. Lagacy                                                    

  Director

Julie A. Lagacy

 

/s/ Robert A. Livingston                                           

  Director

Robert A. Livingston

 

/s/ Frederick R. Nance                                              

  Director

Frederick R. Nance

 

/s/ William B. Summers, Jr.                                     

  Director

William B. Summers, Jr.

 

 

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EX-5.1

Exhibit 5.1

[Calfee, Halter & Griswold LLP Letterhead]

July 30, 2020

RPM International Inc.

2628 Pearl Road

P.O. Box 777

Medina, Ohio 44258

We are familiar with the proceedings taken and proposed to be taken by RPM International Inc., a Delaware corporation (the “Company”), with respect to 5,000,000 shares of the Company’s Common Stock, par value $0.01 per share (the “Shares”), to be offered and sold from time to time pursuant to the Amended and Restated RPM International Inc. 2014 Omnibus Equity and Incentive Plan (the “Plan”). As counsel for the Company, we have assisted in the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission in connection with the registration of the Shares under the Securities Act of 1933, as amended (the “Securities Act”).

In this connection, we have examined such documents, records and matters of law as we have deemed necessary or advisable to render the opinion contained herein. In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents.

We express no opinion herein as to the laws of any state or jurisdiction other than the state laws of the General Corporation Law of the State of Delaware and the federal laws of the United States of America.

It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.    

Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and nonassessable.

We consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. We do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

 

Very truly yours,
/s/ Calfee, Halter & Griswold LLP
CALFEE, HALTER & GRISWOLD LLP

 

EX-23.1

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the Amended and Restated RPM International Inc. 2014 Omnibus Equity and Incentive Plan of our reports dated July 27, 2020 relating to the consolidated financial statements and financial statement schedule of RPM International Inc. and the effectiveness of RPM International Inc.’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of RPM International Inc. for the year ended May 31, 2020.

/s/ DELOITTE & TOUCHE LLP

Cleveland, Ohio

July 30, 2020