<PAGE>
EXHIBIT 10.1
EXECUTION COPY
================================================================================
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
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S>
<C>
<C>
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)
Sarbanes-Oxley 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
</TABLE>
i
<PAGE>
<TABLE>
<S>
<C>
<C>
(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
</TABLE>
ii
<PAGE>
<TABLE>
<S>
<C>
<C>
(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
</TABLE>
<TABLE>
<S>
<C>
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, Cassels & Graydon LLP, Canadian and
Ontario Counsel for the Partners, to be Delivered Pursuant to
Section 5(a)
Exhibit C Form of Opinion of P.
Kelly Tompkins, General Counsel of the
Guarantor, to be Delivered Pursuant to Section 5(b)
Exhibit D Form of Opinion of
Calfee, Halter & Griswold LLP, U.S. Counsel for
the Partners and the
Guarantor, to be Delivered Pursuant to Section
5(b)
Exhibit E Forms of Opinion of
McInnes Cooper, Canadian and Nova Scotia
Counsel for the Partners, to be Delivered Pursuant to Section
5(a)
</TABLE>
iii
<PAGE>
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
Goldman, Sachs & Co.
As Representative of the
several Initial Purchasers
c/o Goldman Sachs &
Co.
85 Broad Street
New York, New York 10004
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 Goldman,
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.
<PAGE>
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
2
<PAGE>
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. Ciulla, Smith & Dale, 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
3
<PAGE>
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.
4
<PAGE>
(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
5
<PAGE>
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
6
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
(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
1934
Act) 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
<PAGE>
(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) Sarbanes-Oxley 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 Sarbanes-Oxley Act
of 2002 and the
rules and regulations promulgated in connection therewith
(the
"Sarbanes-Oxley 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
<PAGE>
(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, 599 Lexington Avenue,
New York, New York 10022, 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. Goldman, Sachs & 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
<PAGE>
(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
securit
