EX-10.1 PURCHASE AGREEMENT



 





Exhibit 10.1
















RPM INTERNATIONAL INC.




(a Delaware corporation)




4.45% Senior Notes due 2009




PURCHASE AGREEMENT




Dated: September 27, 2004




















 









 












Table of Contents




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page

	SECTION 1.	 	Representations and Warranties	 	 	2	 
	                    (a)	 	 	 	Representations and Warranties by the Company	 	 	2	 
	 
	 	 	 	(i)	 	Offering Circular	 	 	2	 
	 
	 	 	 	(ii)	 	Incorporated Documents	 	 	2	 
	 
	 	 	 	(iii)	 	Independent Accountants	 	 	3	 
	 
	 	 	 	(iv)	 	Financial Statements	 	 	3	 
	 
	 	 	 	(v)	 	No Material Adverse Change in Business	 	 	3	 
	 
	 	 	 	(vi)	 	Good Standing of the Company	 	 	3	 
	 
	 	 	 	(vii)	 	Good Standing of Subsidiaries	 	 	4	 
	 
	 	 	 	(viii)	 	Authorization of this Agreement	 	 	4	 
	 
	 	 	 	(ix)	 	Authorization of the Indenture	 	 	4	 
	 
	 	 	 	(x)	 	Authorization of the Registration Rights Agreement	 	 	4	 
	 
	 	 	 	(xi)	 	Authorization of the Notes	 	 	4	 
	 
	 	 	 	(xii)	 	Description of the Notes, the Indenture and the Registration Rights Agreement	 	 	5	 
	 
	 	 	 	(xiii)	 	Absence of Defaults and Conflicts	 	 	5	 
	 
	 	 	 	(xiv)	 	Absence of Labor Dispute	 	 	6	 
	 
	 	 	 	(xv)	 	Absence of Proceedings	 	 	6	 
	 
	 	 	 	(xvi)	 	Absence of Manipulation	 	 	6	 
	 
	 	 	 	(xvii)	 	Possession of Intellectual Property	 	 	6	 
	 
	 	 	 	(xviii)	 	Absence of Further Requirements	 	 	6	 
	 
	 	 	 	(xix)	 	Investment Company Act	 	 	6	 
	 
	 	 	 	(xx)	 	Good and Marketable Title	 	 	7	 
	 
	 	 	 	(xxi)	 	Environmental Laws	 	 	7	 
	 
	 	 	 	(xxii)	 	ERISA	 	 	8	 
	 
	 	 	 	(xxiii)	 	Insurance	 	 	8	 
	 
	 	 	 	(xxiv)	 	Taxes	 	 	8	 
	 
	 	 	 	(xxv)	 	Internal Controls	 	 	8	 
	 
	 	 	 	(xxvi)	 	No Unlawful Payments	 	 	8	 
	 
	 	 	 	(xxvii)	 	No Brokerage Commission; Finder’s Fee	 	 	9	 
	 
	 	 	 	(xxviii)	 	Dividend Payments	 	 	9	 
	 
	 	 	 	(xxix)	 	Similar Offering	 	 	9	 
	 
	 	 	 	(xxx)	 	Rule 144A Eligibility	 	 	9	 
	 
	 	 	 	(xxxi)	 	No General Solicitation or General Advertising	 	 	9	 
	 
	 	 	 	(xxxii)	 	No Registration Required	 	 	9	 
	 
	 	 	 	(xxxiii)	 	Reporting Company	 	 	9	 
	 
	 	 	 	(xxxiv)	 	Sarbanes-Oxley Compliance	 	 	9	 
	 
	 	 	 	(xxxv)	 	Reclassification	 	 	10	 
	                    (b)	 	 	 	Officer’s Certificates	 	 	10	 
	SECTION 2.	 	Sale and Delivery to Initial Purchasers; Closing	 	 	10	 
	                    (a)	 	 	 	Notes	 	 	10	 
	                    (b)	 	 	 	Payment	 	 	10	 
	                    (c)	 	 	 	Denominations; Registration	 	 	11	 







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	SECTION 3.	 	Covenants of the Company	 	 	11	 
	                    (a)	 	 	 	Offering Circular	 	 	11	 
	                    (b)	 	 	 	Notice and Effect of Material Events	 	 	11	 
	                    (c)	 	 	 	Amendments to Offering Circular and Supplements	 	 	11	 
	                    (d)	 	 	 	Qualifications of Notes for Offer and Sale	 	 	12	 
	                    (e)	 	 	 	Use of Proceeds	 	 	12	 
	                    (f)	 	 	 	Rating of Notes	 	 	12	 
	                    (g)	 	 	 	Restriction on Sale of Notes	 	 	12	 
	                    (h)	 	 	 	DTC	 	 	12	 
	                    (i)	 	 	 	Reporting Requirements	 	 	12	 
	SECTION 4.	 	Payment of Expenses	 	 	12	 
	                    (a)	 	 	 	Expenses	 	 	12	 
	                    (b)	 	 	 	Termination of Agreement	 	 	13	 
	SECTION 5.	 	Conditions of Initial Purchasers’ Obligations	 	 	13	 
	                    (a)	 	 	 	Opinions of Counsel for the Company	 	 	13	 
	                    (b)	 	 	 	Opinion of Counsel for Initial Purchasers	 	 	13	 
	                    (c)	 	 	 	Officers’ Certificate	 	 	14	 
	                    (d)	 	 	 	Accountant’s Comfort Letter	 	 	14	 
	                    (e)	 	 	 	Bring-down Comfort Letter	 	 	14	 
	                    (f)	 	 	 	Maintenance of Rating	 	 	14	 
	                    (g)	 	 	 	Indenture and Registration Rights Agreement	 	 	14	 
	                    (h)	 	 	 	Additional Documents	 	 	14	 
	                    (i)	 	 	 	Termination of Agreement	 	 	15	 
	SECTION 6.	 	Subsequent Offers and Resales of the Notes	 	 	15	 
	                    (a)	 	 	 	Offer and Sale Procedures	 	 	15	 
	 
	 	 	 	(i)	 	Offers and Sales to Qualified Institutional Buyers	 	 	15	 
	 
	 	 	 	(ii)	 	No General Solicitation	 	 	15	 
	 
	 	 	 	(iii)	 	Purchases by Non-Bank Fiduciaries	 	 	15	 
	 
	 	 	 	(iv)	 	Subsequent Purchaser Notification	 	 	15	 
	 
	 	 	 	(v)	 	Restrictions on Transfer	 	 	16	 
	                    (b)	 	 	 	Covenants of the Company	 	 	16	 
	 
	 	 	 	(i)	 	Integration	 	 	16	 
	 
	 	 	 	(ii)	 	Rule 144A Information	 	 	16	 
	 
	 	 	 	(iii)	 	Restriction on Purchases	 	 	16	 
	                    (c)	 	 	 	Qualified Institutional Buyer	 	 	16	 
	SECTION 7.	 	Indemnification	 	 	17	 
	                    (a)	 	 	 	Indemnification of Initial Purchasers	 	 	17	 
	                    (b)	 	 	 	Indemnification of the Company	 	 	17	 
	                    (c)	 	 	 	Actions against Parties; Notification	 	 	18	 
	                    (d)	 	 	 	Settlement without Consent if Failure to Reimburse	 	 	18	 
	SECTION 8.	 	Contribution	 	 	18	 
	SECTION 9.	 	Representations, Warranties and Agreements to Survive Delivery	 	 	20	 
	SECTION 10.	 	Termination of Agreement	 	 	20	 
	                    (a)	 	 	 	Termination; General	 	 	20	 
	                    (b)	 	 	 	Liabilities	 	 	20	 
	SECTION 11.	 	Default by One or More of the Initial Purchasers	 	 	20	 







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	SECTION 12.	 	Tax Disclosure	 	 	21	 
	SECTION 13.	 	Notices	 	 	21	 
	SECTION 14.	 	Parties	 	 	22	 
	SECTION 15.	 	GOVERNING LAW AND TIME	 	 	22	 
	SECTION 16.	 	Effect of Headings	 	 	22	 
	SECTION 17.	 	Counterparts	 	 	22	 







	 	 	 
	SCHEDULES
	 	 
	Schedule A

	 	List of Initial Purchasers
	Schedule B

	 	RPM International Inc. — 4.45% Senior Notes due 2009
	Schedule C

	 	List of Material Subsidiaries
	 
	 	 
	EXHIBITS
	 	 
	Exhibit A

	 	Form of Registration Rights Agreement
	Exhibit B

	 	Form of Opinion of P. Kelly Tompkins, General Counsel of the Company, to be Delivered Pursuant to Section 5(a)
	Exhibit C

	 	Form of Opinion of Calfee, Halter & Griswold LLP, United States Counsel for the Company, to be Delivered Pursuant to Section 5(a)







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RPM INTERNATIONAL INC.




$200,000,000




4.45% Senior Notes due 2009




PURCHASE AGREEMENT




September 27, 2004




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 International Inc., a Delaware corporation (the “Company”), 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 Company and
the purchase by the Initial Purchasers, acting severally and not jointly, of
the respective principal amounts set forth in said Schedule A of $200,000,000
aggregate principal amount of the Company’s 4.45% Senior Notes due 2009 (the
“Notes”).



     The Notes are to be issued pursuant to an indenture, to be dated as of the
Closing Time (as defined in Section 2(c)) (the “Indenture”), between the
Company and The Bank of New York, as trustee (the “Trustee”). The holders of
Notes will be entitled to the benefits of a Registration Rights Agreement
between the Company and the Initial Purchasers, to be dated as of the Closing
Time, which agreement shall be substantially in the form attached hereto as
Exhibit A, with such changes as shall be agreed to by the parties hereto (the
“Registration Rights Agreement”).



     The Company understands that the Initial Purchasers propose to make an
offering of the Notes 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 Notes to purchasers (“Subsequent
Purchasers”) at any time after this Agreement has been executed and delivered.
The Notes 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. Pursuant to the terms of the Notes and
the Indenture, investors that acquire Notes may only resell or otherwise
transfer such Notes if such Notes are hereafter registered under the 1933 Act
or 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 Company has prepared and delivered to each Initial Purchaser copies of
a preliminary offering circular dated September 27, 2004 (the “Preliminary
Offering Circular”) and has 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 September 27, 2004 (the
“Final Offering Circular”), each for use by such Initial Purchaser in
connection with its solicitation of purchases of, or offering of, the Notes.
“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
Company to the Initial Purchasers in connection with their solicitation of
purchases of, or offering of, the Notes.



     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 Company. The Company represents
and warrants to each Initial Purchaser as of the date hereof, as of the Closing
Time referred to in Section 2(c) hereof, and agrees with each Initial
Purchaser, as follows:




     (i) Offering Circular. The Offering Circular does not, 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 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 Offering Circular made in reliance
upon and in conformity with information furnished to the Company in
writing by any Initial Purchaser through the Representative expressly for
use in the 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
Company on Form 10-K filed with the Commission, each Quarterly Report of
the Company on Form 10-Q and each Current Report of the Company on Form
8-K filed (not furnished) with the Commission subsequent to the date of
filing of the most recent Annual Report of the Company 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



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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. The accountants who certified the
financial statements and supporting schedules incorporated by reference
in the Offering Circular 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 Company
and its consolidated subsidiaries at the dates indicated and the
statement of income, shareholders’ equity and cash flows of the Company
and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles (“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 prospects of the
Company and its 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 the Company or any of
its Material Subsidiaries (as defined below), other than those in the
ordinary course of business, which are material with respect to the
Company and its 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 Company on any
class of its capital stock, and (D) there has not been any material
change in the capital stock, short-term debt or long-term debt of the
Company and its Material Subsidiaries (as defined below), except as
disclosed in the Offering Circular.




     (vi) Good Standing of the Company. The Company 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 Company 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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     (vii) Good Standing of Subsidiaries. Each subsidiary of the Company
listed on Schedule C hereto (collectively, the “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
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 of each subsidiary of the Company have been duly authorized and
validly issued, are fully paid and non-assessable, and except for
directors’ qualifying shares and third party interests in joint ventures
in which the Company invests, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims.
The Material Subsidiaries are the only subsidiaries of the Company
which meet the criteria in the definition of “significant subsidiary”
pursuant to Rule 1-02(w) of Regulation S-X under the 1933 Act.




     (viii) Authorization of this Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.




     (ix) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and, when executed and delivered by the Company
and the Trustee, will constitute a valid and binding agreement of the
Company, enforceable against the Company 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).




     (x) Authorization of the Registration Rights Agreement. The
Registration Rights Agreement has been authorized by the Company and,
when executed and delivered by the Company and the Initial Purchasers,
will constitute a valid and binding agreement of the Company, enforceable
against the Company 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
Company 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 Company, enforceable against the
Company in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to



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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 and the Registration Rights Agreement.




     (xii) Description of the Notes, the Indenture and the Registration
Rights Agreement. The Notes, the Indenture and the Registration Rights
Agreement will conform in all material respects to the respective
statements relating thereto contained in the Offering Circular.




     (xiii) Absence of Defaults and Conflicts. Neither the Company nor
any of its 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 Company or any of its Material Subsidiaries is a party or by
which the Company or any of its Material Subsidiaries may be bound, or to
which any of the property or assets of the Company or any of its Material
Subsidiaries is subject (collectively, “Agreements and Instruments”)
except for such defaults that would not reasonably be expected to result
in a Material Adverse Effect; and the execution, delivery and performance
of this Agreement, the Registration Rights Agreement, the Indenture and
the Notes and the consummation of the transactions contemplated herein
and in the Offering Circular (including the issuance and sale of the
Notes and the use of the proceeds from the sale of the Notes as described
in the Offering Circular under the caption “Use of Proceeds”) and
compliance by the Company with its obligations hereunder and under the
Indenture, the Registration Rights Agreement 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 Company or
any of its 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 Company from performing its obligations hereunder), nor will
such action result in any violation of (i) the provisions of the charter
or by-laws or other constituting or organizational document of the
Company or any of its 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 Company or any of its 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 Company from performing its 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 Company
or any of its subsidiaries.



5









 






     (xiv) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any of its Material Subsidiaries exists or, to the
knowledge of the Company, is imminent which, in either case, might be
expected to have a Material Adverse Effect.




     (xv) 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 Company, threatened,
against or affecting the Company or any of its subsidiaries, which,
singly or in the aggregate, if determined adversely, would reasonably be
expected to result in a Material Adverse Effect.




     (xvi) Absence of Manipulation. Neither the Company nor any
affiliate of the Company has taken, nor will the Company 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 Company
to facilitate the sale or resale of the Notes.




     (xvii) Possession of Intellectual Property. The Company and its
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 Company’s knowledge, neither the Company nor any of its
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 Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.




     (xviii) 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 Company of its
obligations hereunder or under the Registration Rights Agreement or the
Indenture, in connection with the offering, issuance or sale of the Notes
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 Company of this Agreement, the Registration Rights
Agreement or the Indenture, or for the valid authorization, issuance,
sale and delivery of the Notes, except such as have been already obtained
and or as may be required under the 1933 Act or the 1933 Act Regulations
or state securities laws in connection with the transactions contemplated
in the Registration Rights Agreement and except for the qualification of
the Indenture under the Trust Indenture Act of 1939, as amended (the
“1939 Act”).




     (xix) Investment Company Act. Neither the Company nor any of its
subsidiaries is, nor upon the issuance and sale of the Notes as herein
contemplated and



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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.




     (xx) Good and Marketable Title. The Company and each of its
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 Company and its 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.




     (xxi) Environmental Laws. 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 Company or any of its subsidiaries
(or, to the knowledge of the Company, any of their predecessors in
interest) at, upon or from any of the property now or previously owned or
leased by the Company or its subsidiaries in violation of, and the
Company or any of its 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 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
Company or any of its subsidiaries or with respect to which the Company
or any of its subsidiaries have knowledge, 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 its business, the Company conducts a
periodic review 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 Company and its subsidiaries,
in the course of which it identifies and evaluates 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 Company has reasonably
concluded that such associated



7









 






costs and liabilities have not had and
would not, singularly or in the aggregate, reasonably be expected to have
a Material Adverse Effect.




     (xxii) ERISA. The Company is 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 Company would have any liability; the
Company has not incurred and does not expect 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 Company 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.




     (xxiii) Insurance. The Company and each of its 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.




     (xxiv) Taxes. The Company has filed all federal, state and local
income and franchise tax returns required to be filed through the date
hereof and has paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries which has
had, nor does the Company have any knowledge of any tax deficiency which,
if determined adversely to the Company or any of its subsidiaries, might
have, a Material Adverse Effect.




     (xxv) Internal Controls. The Company (A) makes and keeps accurate
books and records and (B) maintains 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.




     (xxvi) No Unlawful Payments. To the best of the Company’s knowledge
after due inquiry, neither the Company nor any of its subsidiaries, nor
any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries, has used any
corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official
or employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any
bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.



8









 






     (xxvii) No Brokerage Commission; Finder’s Fee. To the best of the
Company’s knowledge after due inquiry, there are no contracts, agreements
or understandings between the Company and any person that would give rise
to a valid claim against the Company or any Initial Purchaser for a
brokerage commission, finder’s fee or other like payment in connection
with this offering.




     (xxviii) Dividend Payments. No Material Subsidiary of the Company
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 Company, from making any other distribution on such
Material Subsidiary’s capital stock or from repaying to the Company any
loans or advances to such Material Subsidiary from the Company.




     (xxix) Similar Offering. Neither the Company nor any of its
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 Notes to be
registered under the 1933 Act.




     (xxx) Rule 144A Eligibility. The Notes 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 in a U.S. automated
interdealer quotation system.




     (xxxi) No General Solicitation or General Advertising. None of the
Company, its 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 Company makes no representation) has engaged
or will engage, in connection with the offering of the Notes, in any form
of general solicitation or general advertising within the meaning of Rule
502(c) under Regulation D of the 1933 Act.




     (xxxii) 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 Notes 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 Notes under the 1933 Act or to qualify
the Indenture under the 1939 Act.




     (xxxiii) Reporting Company. The Company is subject to and in
compliance with the reporting requirements of Section 13 or Section 15(d)
of the 1934 Act.




     (xxxiv) Sarbanes-Oxley Compliance. There is and has been no failure in any material respect on the
part of the Company or, to the Company’s knowledge, any of the Company’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



9









 






connection therewith (the “Sarbanes-Oxley Act”), including
Section 402 related to loans and Sections 302 and 906 related to
certifications.




     (xxxv) Reclassification. The Company’s reclassification of its
co-op advertising expenses for the quarter ended August 31, 2004 and any
corresponding reclassification that is made to the Company’s financial
statements for prior periods or prior years (collectively, the
“Reclassified Periods”) will have the effect of reducing the Company’s
net sales and selling, general and administrative expenses by the same
amount in respect of each Reclassified Period, estimated at approximately
1% to 1.5% of the Company’s sales for such Reclassified Period. Such
reclassification will not affect the Company’s net income, income before
income taxes or consolidated statements of cashflows as set forth in its
consolidated financial statements and does not reflect a material change
to the Company’s audited and unaudited consolidated financial statements
for any of the Reclassified Periods included or incorporated by reference
in the Offering Circular.



     (b) Officer’s Certificates. Any certificate signed by any officer of the
Company delivered to the Initial Purchasers or to counsel for the Initial
Purchasers shall be deemed a representation and warranty by the Company to the
Initial Purchasers as to the matters covered thereby.



     SECTION 2. Sale and Delivery to Initial Purchasers; Closing.



     (a) Notes. On the basis of the representations, warranties and agreements
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Initial Purchaser, severally and not jointly,
and each Initial Purchaser, severally and not jointly, agrees to purchase from
the Company at the price set forth in Schedule B hereto the principal amount of
the Notes set forth opposite the name of such Initial Purchaser in Schedule A
plus any additional principal amount of Notes 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 Notes 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 Company,
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 Company (such time and date of payment and delivery
being herein called the “Closing Time”).



     Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to the Representative for the respective accounts of the Initial Purchasers of
the Notes 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 Notes
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 Notes to be purchased by any Initial
Purchaser whose funds have not been received by the Closing



10









 





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 Notes 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 Notes in global form be registered in the name
of Cede & Co. The certificates for the Notes 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 Company. The Company covenants with each
Initial Purchaser as follows:



     (a) Offering Circular. The Company, 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 Company will immediately
notify each Initial Purchaser, and confirm such notice in writing, of (x) any
filing made by the Company of information relating to the offering of the Notes
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 Notes by the Initial Purchasers as evidenced by a notice from
the Initial Purchasers to the Company in writing, any material changes in or
affecting the condition, financial or otherwise, or the earnings, business or
business prospects of the Company and its 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 Company, its 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 Company
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 Company 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



11









 





amendment
or supplement, shall constitute a waiver of any of the conditions set forth in
Section 5 hereof.




     (d) Qualifications of Notes for Offer and Sale. The Company will use its
best efforts, in cooperation with the Initial Purchasers, to qualify the Notes
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 Notes; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation 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 Notes have been so qualified, the Company 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 Notes.



     (e) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Notes in the manner indicated in the Offering Circular
under “Use of Proceeds.”



     (f) Rating of Notes. The Company shall take all reasonable action
necessary to enable Standard & Poor’s Rating Services, a division of The
McGraw-Hill Companies, Inc. (“S&P”) and Moody’s Investor Service, Inc.
(“Moody’s”) to provide their respective credit ratings of the Notes.



     (g) Restriction on Sale of Notes. During a period of 45 days from the
date of the Offering Circular, the Company 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 Company or securities of the Company that
are convertible into, or
exchangeable for, the offered Notes or such other similar debt securities.
The foregoing sentence shall not apply to (A) the Notes to be sold hereunder,
(B) the Exchange Notes (as defined in the Registration Rights Agreement) to be
issued by the Company pursuant to the terms of the Registration Rights
Agreement and (C) commercial paper issued by the Company in the ordinary course
of its business.



     (h) DTC. The Company will cooperate with the Representative and use its
best efforts to permit the Notes to be eligible for clearance and settlement
through the facilities of DTC.



     (i) Reporting Requirements. The Company, 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 Company will pay all expenses incident to the
performance of its 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
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



12









 





Agreement among Initial Purchasers, the Indenture, the Notes,
the Registration Rights Agreement and such other documents as may be required
in connection with the offer, purchase, sale, issuance or delivery of the
Notes, (iii) the preparation, issuance and delivery of the certificates for the
Notes to the Initial Purchasers including any transfer taxes, any stamp or
other duties payable upon the sale, issuance and delivery of the Notes to the
Initial Purchasers and any charges of DTC in connection therewith, (iv) the
fees and disbursements of the Company’s counsel, accountants and other
advisors, (v) the qualification of the Notes 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 Notes, (vii) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Notes, (viii) the fees and expenses of any transfer agent or registrar for
the Notes, (ix) any fees payable in connection with the rating of the Notes and
(x) 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 Notes, 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 Company 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 Company contained in Section 1 hereof or
in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:



     (a) Opinions of Counsel for the Company. At the Closing Time, the Initial
Purchasers shall have received the opinion of P. Kelly Tompkins, General
Counsel of the Company, and the opinion of Calfee, Halter & Griswold LLP,
counsel for the Company, 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 C 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 Company
and certificates of public officials.



     (b) 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
Company and certificates of public officials.



13









 





     (c) 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 Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Initial Purchasers shall have received a certificate of the President or a
Senior Vice President of the Company and the Chief Financial Officer of the
Company, 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 Company 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.



     (d) Accountant’s Comfort Letter. At the time of the execution of this
Agreement, the Initial Purchasers shall have received from Ciulla, Smith &
Dale, 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.



     (e) Bring-down Comfort Letter. At the Closing Time, the Initial
Purchasers shall have received from Ciulla, Smith & Dale, 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.



     (f) Maintenance of Rating. At the Closing Time, the Notes shall be rated
at least BBB (negative outlook) by S&P and Baa3 (negative outlook) by Moody’s,
and the Company 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 Notes have such rating. Since
the date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to the Notes or any of the Company’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 Notes or any of the Company’s other
securities.



     (g) Indenture and Registration Rights Agreement. At or prior to the
Closing Time, the Company and the Trustee shall have duly executed and
delivered the Indenture, and the Company and the Initial Purchasers shall have
duly executed and delivered the Registration Rights Agreement.



     (h) 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 Notes as



14









 





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 Company in connection with the issuance and
sale of the Notes as herein contemplated shall be satisfactory in form and
substance to the Initial Purchasers and counsel for the Initial Purchasers.




     (i) 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 Company 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 Notes.



     (a) Offer and Sale Procedures. Each of the Initial Purchasers and the
Company, as the case may be, hereby establish and agree to observe the
following procedures in connection with the offer and sale of the Notes.




     (i) Offers and Sales to Qualified Institutional Buyers. Offers and
sales of the Notes 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 Notes 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 1933 Act) shall
be used in the United Stated in connection with the offering or sale of
the Notes.




     (iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of Notes 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 Notes from such
Initial Purchaser or its affiliate that the Notes (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 Company 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 Notes for its own
account or for the account of a Qualified Institutional Buyer to
whom notice is given that the offer, sale or



15









 






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 Notes except as otherwise agreed by the Company and the Initial
Purchasers. Following the sale of the Notes by the Initial Purchasers to
each Subsequent Purchaser pursuant to the terms hereof, the Initial
Purchasers shall not be liable or responsible to the Company for any
losses, damages or liabilities suffered or incurred by the Company,
including any losses, damages or liabilities under the 1933 Act, arising
from or relating to any subsequent resale or transfer of any Note.



     (b) Covenants of the Company. The Company covenants with each Initial
Purchaser as follows:




     (i) Integration. The Company 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 Company 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 Notes by the Company to the Initial Purchasers, (B)
the resale of the Notes by the Initial Purchasers to Subsequent
Purchasers, or (C) the resale of the Notes 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. The Company agrees that, in order to
render the Notes eligible for resale pursuant to Rule 144A under the 1933
Act, while any of the Notes remain outstanding, it will make available,
upon request, to any holder of Notes or prospective purchasers of Notes
the information specified in Rule 144A(d)(4), unless the Company
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 Notes, the Company will not, and will
cause its “affiliates” (as such term is defined in Rule 144(a)(1) under
the 1933 Act) not to, purchase or agree to purchase or otherwise acquire
any Notes 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 Company or any such affiliate shall submit
such Notes to the Trustee for cancellation.



     (c) Qualified Institutional Buyer. Each Initial Purchaser severally and
not jointly represents and warrants to, and agrees with, the Company that it is
a Qualified Institutional Buyer.



16









 





     SECTION 7. Indemnification.



     (a) Indemnification of Initial Purchasers. The Company 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 Company; 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 written information furnished to the Company by any
Initial Purchaser through the Representative expressly for use in the Offering
Circular (or any amendment or supplement thereto). The Company acknowledges
that the statements in (A) the last full paragraph on page i of the Offering
Circular, and (B) the fourth, fifth and sixth paragraphs under the
“Underwriting” section of the Preliminary Offering
Circular and Final Offering Circular relating to stabilization and
market-making activities constitute the only information furnished in writing
by or on behalf of the Initial Purchasers for inclusion in the Preliminary
Offering Circular, the Final Offering Circular or in any amendment or
supplement thereto.




     (b) Indemnification of the Company. Each Initial Purchaser severally
agrees to indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, 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



17









 





supplement thereto) in reliance upon and in conformity with
written information furnished to the Company 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
Company. 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
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Initial Purchasers on the other hand from the offering of the
Notes pursuant to this Agreement or (ii) if the allocation



18









 





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 Company 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 Company on the one hand and the
Initial Purchasers on the other hand in connection with the offering of the
Notes pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Notes pursuant
to this Agreement (before deducting expenses) received by the Company and the
total discount received by the Initial Purchasers, bear to the aggregate
initial offering price of the Notes.



     The relative fault of the Company 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 Company 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 Company 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 Notes 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 1933 Act) 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 same rights to contribution as such Initial
Purchaser, and each person, if any, who controls the Company 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 Company. The Initial Purchasers’ respective



19









 





obligations to contribute pursuant to this Section are several in proportion to
the principal amount of Notes 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 Company or any of its 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 Company and (ii) delivery
of and payment for the Notes.



     SECTION 10. Termination of Agreement.



     (a) Termination; General. The Representative may terminate this Agreement
by notice to the Company 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 Company
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 Company 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
Notes or to enforce contracts for the sale of the Notes, or (iv) if trading in
any securities of the Company 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, 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
Notes which it or they are



20









 





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 Notes 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 Notes 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 Company 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. Tax Disclosure. Notwithstanding any other provision of this
Agreement, from the commencement of discussions with respect to the
transactions contemplated hereby, the Company (and each employee,
representative or other agent of the Company) may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax structure
(as such terms are used in Sections 6011, 6111 and 6112 of the U.S. Code and
the Treasury Regulations promulgated thereunder) of the transactions
contemplated by this Agreement and all materials of any kind (including
opinions or other tax analyses) that are provided relating to such tax
treatment and tax structure.



     SECTION 13. 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:




Goldman, Sachs & Co.

85 Broad Street

New York, New York 10004

Attention: Registration Department




With a copy to:



21









 






Shearman & Sterling LLP

599 Lexington Avenue

New York, 10022

Attention: Abigail Arms

Fax: (202) 508-8100



     Notices to the Company shall be directed to:




RPM International Inc.

P.O. Box 777

2628 Pearl Road

Medina, Ohio 44258

Attention: General Counsel

Fax: (330) 225-6574




With a copy to:




Calfee, Halter & Griswold LLP

800 Superior Avenue, Suite 1400

Cleveland, Ohio 44114

Attention: Edward W. Moore

Fax: (216) 241-0816



     SECTION 14. Parties. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers and the Company 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 and the Company 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 and the Company 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 Notes from the Initial Purchasers shall be deemed to be a
successor by reason merely of such purchase.



     SECTION 15. 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 16. 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 17. 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.



22









 





     If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Initial Purchasers and the Company in accordance with its
terms.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	RPM INTERNATIONAL INC.
	 
	 	 	 	 
	

	 	By:
	 	/s/ P. Kelly Tompkins
	

	 	 	 	
 
	

	 	 	 	Name: P. Kelly Tompkins
	

	 	 	 	Title: Senior Vice President, General
	

	 	 	 	Counsel and Secretary







Accepted as of the date hereof.




GOLDMAN, SACHS & CO.




Acting severally on behalf of themselves
    and
the several Initial Purchasers named
    in
Schedule A hereto



	 	 	 
	By:

	 	/s/ Goldman, Sachs & Co.
	

	 	

	

	 	(Goldman, Sachs & Co.)







 









 






SCHEDULE A




	 	 	 	 	 
	 	 	Principal Amount of
	Name of Initial Purchaser
	 	Notes

	Goldman, Sachs & Co.
	 	$	120,000,000	 
	McDonald Investments Inc.
	 	$	20,000,000	 
	NatCity Investments, Inc.
	 	$	20,000,000	 
	Wachovia Capital Markets, LLC.
	 	$	20,000,000	 
	BNY Capital Markets, Inc.
	 	$	4,000,000	 
	Fifth Third Securities, Inc.
	 	$	4,000,000	 
	Mellon Financial Markets, LLC.
	 	$	4,000,000	 
	Mizuho International plc
	 	$	4,000,000	 
	Piper Jaffray & Co.
	 	$	4,000,000	 
	 
	 	 	
 	 
	Total
	 	$	200,000,000	 
	 
	 	 	
 	 







SCH A-1









 






SCHEDULE B




RPM INTERNATIONAL INC.

4.45% SENIOR NOTES DUE 2009




     1. The initial offering price per $1,000 principal amount of the Notes
shall be $998.55.



     2. The purchase price to be paid by the Initial Purchasers for the Notes
shall be $992.55 per $1,000 principal amount of Notes, being an amount equal to
the initial offering price set forth in paragraph 1 above, less $6.00 per
$1,000 principal amount of Notes.



     3. Cash interest on the Notes will be payable semi-annually in arrears on
April 15 and October 15 of each year, beginning April 15, 2004. The notes will
accrue interest from September 30, 2004.

     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




	 	 	 	 	 
	 	 	Jurisdiction of
	Subsidiary
	 	Corporation

	RPM, Inc.
	 	Ohio
	RPM Industrial Holding Company
	 	Delaware
	RPM Consumer Holding Company
	 	Delaware
	RPM Holdco Corp.
	 	Delaware
	StonCor Group, Inc.
	 	Delaware
	Dryvit Holdings, Inc.
	 	Rhode Island
	Rust-Oleum Corporation
	 	Illinois
	Tremco Incorporated
	 	Ohio
	DAP Products Inc.
	 	Delaware







Exhibit A-1




 









 










Exhibit A




FORM OF REGISTRATION RIGHTS AGREEMENT



[Filed as Exhibit 4.2 herewith]


Exhibit A-1





 










 





EXHIBIT B




FORM OF OPINION OF P. KELLY TOMPKINS



GENERAL COUNSEL OF THE COMPANY,



TO BE DELIVERED PURSUANT TO SECTION 5(a)




          (i) The Company 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 the 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 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
Company, free and clear of all liens, encumbrances, equities or claims.



          (iv) To the best of such counsel’s 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 Company or any of its
subsidiaries is a party or of which any property or assets of the Company
or any of its subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries, singularly or in the
aggregate, might have a Material Adverse Effect; and, to the best of such
counsel’s 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. 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
Company’s Annual Report on Form 10-K for the year ended May 31, 2004)
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 Notes and the execution, delivery and
compliance by the Company with all of the provisions of the Purchase
Agreement, the Indenture, the Registration Rights Agreement 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 similar agreement or
instrument to which the Company or any of its Material Subsidiaries is a
party or by which the Company or any of its Material Subsidiaries is
bound or to which any of the properties or assets of the Company or any
of it 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 Company or
any of its Material Subsidiaries or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its Material
Subsidiaries or any of their properties or assets.



          (vii) Neither the Company nor any of its Material Subsidiaries is in
violation of its charter or by-laws or other constituting or
organizational document.



          (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 Company
or any of its subsidiaries (or, to the knowledge of the Company, any of
their predecessors in interest) at, upon or from any of the property now
or previously owned or leased by the Company 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 Company or any of its subsidiaries or
with respect to which the Company or any of its subsidiaries have
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which have 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.



 









 





     In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the Federal laws of the United States of
America, the General Corporation Law of the State of Ohio and the General
Corporation Law of the State of Delaware. Such opinion shall also be to the
effect that (x) such counsel has acted as counsel to the Company in connection
with the preparation of the Offering Circular and (y) based on the foregoing,
no facts have come to the attention of such counsel which lead them to believe
that the Offering Circular or any amendment or supplement thereto (except for
the financial statements and related schedules and other financial data
included or incorporated by reference therein, as to which such counsel need
express no belief), at the time the Offering Circular was issued, at the time
any such amended or supplemented Offering Circular was issued or at the Closing
Time, contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The foregoing opinion and statement may be qualified by a statement
to the effect that such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the Offering
Circular (other than as set forth in clause (v) above).



 









 






EXHIBIT C




FORM OF OPINION OF CALFEE, HALTER & GRISWOLD LLP



UNITED STATES COUNSEL FOR THE COMPANY,



TO BE DELIVERED PURSUANT TO SECTION 5(a)




          (i) The Company 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 in the Offering
Circular (other than the financial statements and related schedules
therein, as to which such counsel need express no belief), 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 Notes,” “Exchange Offer; Registration Rights,”
“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.



          (iv) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.



          (v) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company 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).



          (vi) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable against the Company 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).



          (vii) The Notes are in the form contemplated by the Indenture, have
been duly authorized, executed, issued and delivered by the Company and,
when authenticated by the Trustee in the manner provided in the
Indenture, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their


Exhibit C-1


 









 





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).




          (viii) The issue and sale of the Notes and the execution, delivery
and performance by the Company with all of the provisions of the Purchase
Agreement, the Indenture, the Registration Rights Agreement 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 as an exhibit to any of the documents incorporated by reference in
the Offering Circular, nor will such actions result in any violation of
the provisions of the charter or by-laws of the Company; and no consent,
approval, authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the execution,
delivery and performance of the Purchase Agreement, the Registration
Rights 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 or
made and or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws in connection with the transactions
contemplated in the Registration Rights Agreement and except for the
qualification of the Indenture under the 1939 Act.



          (ix) It is not necessary in connection with the offer, sale and
delivery of the Notes to the Initial Purchasers and each Subsequent
Purchaser in the manner contemplated by the Purchase Agreement and the
Offering Circular to register the Notes under the 1933 Act or to qualify
the Indenture under the 1939 Act.



          (x) The Company is not, nor as of the Closing Time after giving
effect to the offering and sale of the Notes and the application of the
net proceeds therefrom will it be, an “investment company” as defined in
the Investment Company Act of 1940, as amended.



          (xi) The Notes, the Registration Rights Agreement and the Indenture
conform in all material respects to the descriptions thereof contained in
the Offering Circular.



     In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York, the General Corporation Law of the
State of Ohio and the General Corporation Law of the State of Delaware. Such
opinion shall also be to the effect that (x) such counsel has acted as counsel
to the Company in connection with the preparation of the Offering Circular and
(y) based on the foregoing, no facts have come to the attention of such counsel
which lead them to believe that the Offering Circular or any amendment or
supplement thereto (except for the financial statements and related schedules
and other financial data included or incorporated by reference therein, as to
which such counsel need express no belief), at the time the Offering


Exhibit C-2


 









 






Circular was issued, at the time any such amended or supplemented Offering
Circular was issued or at the Closing Time, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing opinion
and statement may be qualified by a statement to the effect that such counsel
does not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Offering Circular (other than as set forth
in clauses (iii) and (xi) above).


Exhibit C-3